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  • 1.  The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 04-28-2011 02:25 PM
    This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
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    The Architect-Contractor Smackdown

    Using specifications and drawing notes to create an end-run around the contract

    by Steven G. Shapiro *This entry was originally posted to AIA Archiblog in June 2008.

    During a typical design and construction project, the general contractor and architect work closely for the duration of a project, often without a direct contract, to legally define the scope of their relationship. In the absence of a contract, the parties often jockey to create greater rights to protect their own interest.  Lately, it seems that the architecture community has expanded its rights to the detriment of the contractors.

    Consider, for example, an architecture firm designing an office building and a general contractor engaged in its construction. By the terms of its agreement with the owner, the general contractor delivers a submittal to the architect for review and may contractually expect a response in 7 business days. By the terms of the drawing notes and specifications, however, the architect may have reserved 10 business days to respond to the submittal.

    This simple example illustrates the seemingly endless tension in the allocation of the rights and duties between the general contractor and the architect. In the traditional delivery method of design-bid-build (or various hybrid forms of project delivery), the architect holds a contract with the owner regarding the duties of design and contract administration. As part of its engagement, the architect then issues drawings and specifications setting forth the design of the project.

    At the same time, the general contractor negotiates a separate contract with the owner regarding construction services. In the construction services agreement, the drawings and specifications are incorporated into the document to form the contract documents. These contract documents bind the GC to their dictates and directions and, at times, conflict with the terms and conditions of the construction agreement.

    By appearances, the architectural community has recently expanded the reach of the specifications and drawing notes to place undue risk to the contractor. As a construction manager and allied member of the AIA, I appreciate the agenda of the architects. The zeal to re-allocate risk to the contractor is now beyond the norm.

    Legal disputes, or perhaps battles of negotiation, are likely brewing between the GC community and developers, and, by extension, architects.  In the near-future, I would expect to see contractors seeking to limit the power of the architects to set forth their working relationship. In the absence of resolution, I can envision litigation to resolve these issues.

    *Steven G. Shapiro, an allied member of the AIA and former commercial real estate development attorney, is an adjunct professor at the University of Maryland and a project manager at a large general contractor. He can be reached at stevengshapiro@aol.com.

    This entry represents the informed opinion of the author only. It is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine the complex interaction of laws, suggestions, and illustrations with specific situations.

    Posted by Doug Gordon on June 5, 2008 4:49 PM '

    Comments (11)

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    Posted by school grants ' August 30, 2010 1:15 PM

    Posted on August 30, 2010 13:15

    Todd Sowers:

    Kenneth Watthuber, AIA:

    Generally Architects create their own roadblocks by being stubborn about resolving issues that may in the best interest of the project. It is common for AE to have the attitude that "everything rolls down hill", creating a very arrogant uncooperative atmosphere, rarely allowing a cumulative decision. This forces contractors to create more paperwork, RFI's for protection. The average contractor will always have a get it done attitude. The contract documents are constructed with open language that allow AE to revert any decision. Most issues have simple solutions, if the AE might realize their human and accounting for every detail in contract documents is impossible. As mentioned the eagerness of our society, is a failure for all. "What's wrong with admitting your mistakes"? If the AE were perfect in design of the contract documents, it would be easy to comply with producing what is the intent of the AE and Owner.

    Posted by Todd Sowers ' February 21, 2010 11:31 PM

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    Posted by Philadelphia SEO ' February 4, 2010 7:17 PM

    Posted on February 4, 2010 19:17

    M. Chamoff, Design Builder:

    With regards to discrepancies such as submittal turn around times, a competent GC should either recognize the specified requirements on the bid drawings or qualify to what they have included in their bid/price. The GC should be spelling out all inclusions and exclusions in his bid and these items should be discussed by O,A&GC before any contract is signed.

    One way to optimize the process is by getting a GC involved early on. Working with a GC through the design phase can help owners and architects understand the costs, schedule and logistical impacts before a design is finalized. This will leave little opportunity for the Contractor to push blame back to an Architect.

    Many times the drawings are not bid out until the design is finalized and the Contractor has little time to understand a design which took months to create. This can leave many questions unanswered.

    The longer a Builder has to review a project the more complete and accurate his estimate will be. Again, leaving less chance for the Contractor to push blame back to an Architect.

    Strong project management and communication on both "sides of the fence" is key and can eliminate many of these problem areas.

    If one party is not meeting the expected requirements allowed by "disconnected contracts," bring it to the table and have the contract amended as soon as possible.

    As I stated above and as proven in many successful projects.. a simple way to prevent much of this from happening is getting the Contractor involved on day 1.

    Posted by M. Chamoff, Design Builder ' November 11, 2009 9:13 PM

    Posted on November 11, 2009 21:13

    Ronald Geren, AIA, CSI, CCS, CCCA, SCIP:

    I agree with Mr. Beyer, the documents need to be coordinated. And that doesn't just stop with the owner--it trickles down to the architect as the preparer of the specifications. The specifications writer should have access to the proposed Owner-Contractor (O/C) Agreement and the executed Owner-Architect (O/A) Agreement when preparing the Division 01 sections to make sure that obligations under those agreements are only further defined and not altered.

    Referring to the example of submittals used in the article, if the proposed O/C agreement stipulates the the expected turna-around time for submittals, the the O/A agreement should state the same. If the O/A agreement stipulates a timeframe and the O/C agreement does not, then the specifications should define the timeframe for the contractor as it is defined in the O/A agreement. If the O/C agreement has a timeframe, but the O/A agreement does not, then, as the architect, you may have to have a discussion with the owner if you disagree with the timeframe to establish a one that is reasonable.

    Other than the specifications and drawings, architects can't modify the terms of a construction agreement, and they can only modify the terms of their agreements with owners during the negotiation period prior to execution, or through whatever change mechanism is provided in the agreement.

    The reason there may be conflicts is probably due to the fact that one or more parties failed to review all the documents prior to issuing or executing.

    Posted by Ronald Geren, AIA, CSI, CCS, CCCA, SCIP ' November 21, 2008 10:56 AM

    Posted on November 21, 2008 10:56

    James Raptis, Architect:

    Well both the Architect and Contractor are in business to make money.
    They both have their own self intrest at heart. One is selling a service and the other a product. The architect is supposed to represent the Owner. But what does he care if the contractor charges more if the architect make more based on a percentage of construction. The conflict does come in about time and products. The contractor wants to use the cheapest product and get things done as fast as possible, to make the most profit. Of couse the architect wants the products he specificed or equal and he want to have enough time to review submittals to catch any mistakes. Of couse, any mistakes in the drawing or submittals will result in a change order and more money for the contractor. So the contractor blames the architect for his added cost (and profits.)
    The owner is the one who is in a lose, lose situation. While the architect points at the Contractor for not understanding the scope or intent of the drawings or asking questions in the bid process.

    Posted by James Raptis, Architect ' October 3, 2008 3:22 PM

    Posted on October 3, 2008 15:22

    construction companies in Illinois:

    whoa. very interesting article.

    Posted by construction companies in Illinois ' June 30, 2008 4:54 PM

    Posted on June 30, 2008 16:54

    Kenneth Watthuber, AIA:

    Now flip the coin on the contractor for a moment. I deal with contractors on a daily basis as well as construction managers hired by the owner to act as, in their eyes I've heard, another level of quality control. In reality, the cm's I've dealt with only serve as another roadblock. The contractor - architect relationship is at best advesarial without having another party with no true investment or liability for the documents or construction. In my experience the cm usually comes down on the contractor's side if differences arise, then spin the owner's perception such that the architect appears to be uncooperative. In fact, the architect is responsible to the owner for ensuring what is built reflects the intent of the documents. If the contractor can't deliver, then perhaps the owner needs to more closely scrutinize his contractors qualifications and ability to perform the work. Typically, again in my experience, contractors who can't perform the work ususally try to deflect the blame to the architect by sending unnecessary rfi's and change requests causing delays that usually end with the contractor getting more money from the owner. All we ask as architect's without having the benefit of a contract with the contractor is that one thing - provide the intent of the documents - if the contractor can't deliver why should architect's take the blame Mr Shapiro? I attribute these attitudes, even mine, to our society's over-eagerness to be politically correct. What's wrong with saying, "Do the work you promised to do for the amount you promised, when you signed the contract!" Last time I visited my project site, I didn't see any 8-year olds swinging on jungle-gyms.

    Posted by Kenneth Watthuber, AIA ' June 13, 2008 9:00 AM

    Posted on June 13, 2008 09:00

    William Beyer, FAIA:

    Where to start?

    The article sub-head, "Using specifications and drawing notes to create an end-run around the contract", is odd, because the specifications and notes ARE PART OF THE CONTRACT.

    And, as an attorney, (or as someone who reads and unerstand the English language), the author should be expected to know that "The General Conditions of the Contract for Construction", which outline the Architect's contractual obligations for submittal review, are also PART OF THE CONTRACT.

    Not being an historian of the AIA Documents, I can't say with complete certainty, but I suspect that for at least 50 years, AIA's A201 General Conditions has required "sufficient time in the Architect's professional judgment to permit adequate review" of submittals, rather than specifying a fixed number of days.

    And finally, if there are conflicts between the Architect's documents and the Owner's "contract" with the GC, the Owner should think about getting a different attorney.

    Posted by William Beyer, FAIA ' June 6, 2008 4:35 PM

    Posted on June 6, 2008 16:35

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    Steven Shapiro
    Project Manager
    The Whiting-Turner Contracting Company
    Bethesda MD
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  • 2.  RE:The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 04-29-2011 03:05 PM
    Mr. Shapiro.

    What a one side, single minded view of the situation.
    Did you factor in that.
    1. not all submittals by the contractor are reviewed solely by the architect. Other consultants are involved, and it takes time to distribute and coordinate all of these reviews, especially to other offices in other communities.
    2. not all submittals are compliant with the contract documents (as per Mr Beyer comment).
    3. Not all submittals are submittals, sometimes they are in fact "material substitution" not identified as such.
    4. as we are talking about time, often the submittals are not distributed to the architect in an appropriately fast manner.
    5. sometimes the submittals are not reviewed by the contractor prior to being sent onto the architect.
    6. (this list may not be complete)

    Mr. Shapiro is making an issue of something in a very divisive manner, failing to identify that at times the issue a contractor has with the submittal process is as a result of their own actions. Actions such as
    1. issues they have with coordinating the awarding of sub contractors, coordinating materials order, etc.
    2. issuing submittals by the slower cheapest route possible and expecting it then to be reviewed and returned in the quickest possible manner. (Question, is shipping time factor in/reduce the time allotted for review.)
    3. attempting to end around the contract documents by submitting a material substitution as a shop drawing.

    Are there going to be issues on the architects side. Yes there will be. Whether it be an issue with how a specific practice performs as whole or of a specific employee / consultant.

    But to pretend in your post that the contractor is without a factor in this is not addressing the entire story. Which only adds to creating a further division within the industry. Which I find unacceptable.

    M. Chamoff I think brings up a good point. That being when a contractor can be involved early, it does provide an opportunity to bring in their input and create for a better overall project. Often our designs have to be based upon assumptions or generalizations about the means and methods employed by the contractor, but still be responsive to an compliant with codes/ordinances, planning approvals, and owners requirements. However, not all contractors (for fairness architects) are interested in taking advantage of this opportunity. A situation which is very disappointing when it occurs, for the Owner has failed to receive the benefit of a more complete collaboration on their project.



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    Chad Berreau Assoc. AIA
    Cottage Grove MN
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  • 3.  RE:The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 05-02-2011 09:34 AM
    I want to preface my position by noting that our firm does both design-bid-build and design-build work.  I agree with both Mr. Beyer's and Mr. Berreau's comments.  Mr. Beyer brought up a very good point in that the Architect's duties are called out in the General and Supplementary Conditions of the Contract.  They are typically further defined in the Division 1 requirements and also in the individual specification sections.

    Having only worked in the profession for 19 years, I have seen a few construction submittals and worked on projects that range from $10,000 to $85 million.  I cannot tell you how many times I have received a submittal with a contractor's shop drawing stamp indicating that it has first been reviewed by him/her only to discover it has not.  It then becomes a delima to reject and send back slowing the project down, discard as it allows us to do in MasterSpec and slowing the project down, or try to review to facilitate both the Owner and the Contractor.  Any time I have had to go beyond a 7 day review time, it has been for lack of initial review by a Contractor.  This lack of initial review includes coordination with other relevant prior submittals (ie. equipment with millwork shop drawings; equipment or dimensions with roof truss submittals; etc.).  The Specifications typically allow 7 days for the Architect and at least 10 for subsequent or concurrent review by consultant.  Our firm tries not to be a hard a#@ during the construction phase but maybe we should put it back on the Contractor and make it solely their issue.
     
    In my opinion, it becomes our issue when we do not notify either by email, fax, or letter, that the review will be delayed for whatever reason.

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    Brian McNew AIA
    McNew Architecture, APAC
    Shreveport LA
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    Original Message


  • 4.  RE:The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 05-02-2011 01:11 PM

    Interesting discussion - has anyone considered that the flaw may be with the "low bidder" mentality so prevalent in the US? Architect's and GC's are both working hard to produce what is often a custom and virtually always unique (due to variances of the site/location) building project. Construction in the US is treated as a commodity when in fact is not - ever. Is the low bidder actually the best qualified candidate to do the project?

    There are reasons why even with the best set of construction documents, and a select pre-qualified set of GC's who are the best in the area at the particular type of work being bid, that the low bidder is not the best choice for a project. Think about it - the low bidder must be low for a reason, other than simply choosing to forgo some profit in order to get the job. Their subs may have missed component(s) of the work or aspect(s) of the specifications. The sub in a rush simply did a take off of the amount of work but did not read all the notes and specifications, generating a bid based upon their "customary" deliverables. The GC may have missed aspect(s) of the project as in the Florida builder who once told me "we have never done fancy (vaulted) ceilings before" even though the reflected ceiling plan clearly called out the "4/12 vaulted ceiling" for the several areas.

    Everybody doing design-bid-build work has experienced the "interpretation" of the documents issue. The fact is, if I were on the contractor's side of the project and working hard to come up with THE low bid, I would interpret the documents in whatever manner produced the most economical result, in order to help me win the bid.

    The low bidder approach to design-bid-build project fosters separate goals (Architect and GC) and hence is not team oriented. The Architect has a particular value system which they believe will establish a level of quality (used broadly here to include all aspects of the final product) that will satisfy or exceed their client's expectations but is not necessarily the cheapest way to go. The GC while wanting to satisfy the Owner with the final construction is attempting to do so via the "low bid" which says "interpret the documents in the most economical manner possible." It really can be a bit like describing an Acura or Volvo and then the low bidder coming back with something cheaper but which is a car which gets you from point A, to point B and so forth...

    For the past 15 years, I have recommended that Owner's make known and ultimately select the middle bidder. The reason for this is that, it is the middle bidder who is most likely able to construct the project at the level of quality depicted by the drawings and specifications. The middle bidder has the "fair" price. When an Owner follows this approach, I have had the smoothest design-bid-build projects with the least number of conflicts and ultimately, the happiest Owners.



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    William Sell AIA
    Corona CA
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    Original Message


  • 5.  RE:The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 04-29-2011 11:30 PM
    Does the submittal complaint make anyone else furious? I received an email from "Construction Advisor Today" essentially complaining about a similar thing. Submittals. No where did I read in either article that the Contractor simply provided the exact product specified. Is the subjectivity on the flighty designer's part for "excessive" rejections or on the CONtractor's part because they want to believe something is equivalent when it's not? 7 out of 10 criteria isn't close enough. If the color on the approved product is right and you can't find an equivalent, TOUGH! 

    These whining CONtractors are complaining about us typically working for very little to review excessive submittals that ultimately save the GC money, not the owner. There would be no problem if they just provide one of the 3 choices and stop screwing the owner around. If we're getting paid by the owner to help save them money, then why is it the most likely scenario that we end up working for the CONtractor to save them money? Protecting the owner is a thankless job. We don't have enough control over the process, considering our liability and the CONtractor's ability to control most of the situation. I believe we need to spend more time on site and get paid for it. With BIM and the future of documentation at the site, it would be a great advantage for us to be there to interpret the BIM model and not leave it up to the GC alone. We could make on site decisions to keep construction moving. We could review all submittals on site and judge colors where the colors are going, in the light they will be viewed in. We would be involved to a point of not being able to blame us for things they had a week to cover up. We could help "see" potential conflicts before they become profitable change orders. 

    When I read both articles, I'm hearing a desire to take more power from us and stick more liability on us for holding up the process because excessive substitutions aren't at the core of the problem, it's our fault for not allowing them to underbid the competition and then replace the quality of items to make up the difference, to make more profit. Why is it that the owner never seems to get proper credits for accepting lesser substitutions, simplifying construction, etc. It's always a one way street into the GC's wallet.

    Lastly, I think the underlying complaint in both articles is that the Architect is seen as sort of an arbitrator between the owner and CONtractor, yet we aren't exactly seen as an unbiased 3rd party when deciding whether a submittal is equal, a change order is just, or whether a pay request was realistic. They don't want us to have any power, any checks and balances. What gets me is the simplicity of this entire situation. Who stands to make something? Is there any profit motive on the Architect's part or the accuser's? The complaint is about these alleged damages from us holding up the process of us saving them money on the owner's nickel. They are basically charging that we intentionally hold up the process simply to be malicious. It's the distilled essence of the argument to take power from us and add penalty that is fundamentally wrong and based on weak accusations and unlikely motivation. There is a dangerous power grab brewing!

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    Eric Rawlings AIA
    Owner
    Rawlings Design, Inc.
    Decatur GA
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  • 6.  RE:The Architect-Contractor Smackdown: Using specifications and drawing notes to create an end-run around the contract

    Posted 05-02-2011 02:31 PM
    It's difficult to recall a more one sided and self serving posting than this one.  Perhaps that's Mr. Shapiro's legal training coming through.  Here's a few statements that I object to:

    "By the terms of its agreement with the owner, the general contractor delivers a submittal to the architect for review and may contractually expect a response in 7 business days. By the terms of the drawing notes and specifications, however, the architect may have reserved 10 business days to respond to the submittal."

    It's in the boilerplate sections of the spec.  If there is a conflict between the specs and the GC/Owner contract it can be addressed by either a.) revising the specs, or b.) noting that the GC/Owner contract language takes precedence.  I've also been put in the situation where an owner agrees to a shorter review time then fails to notify me of the change.  The contractor is not amused, but I don't work for him - I need to hear from my client.  This is all simple project coordination, not a power grab by architects.

    "As part of its engagement, the architect then issues drawings and specifications setting forth the design of the project.

    At the same time, the general contractor negotiates a separate contract with the owner regarding construction services."

    At the same time?  Hardly.  The drawings and specs are completed first.  In many cases the contractor is part of the design team as early as the SD phase, and may produce a GMP contract based on incomplete drawings.  Even so, I have yet to see a GMP that is not adjusted when the final drawings are out.

    "In the construction services agreement, the drawings and specifications are incorporated into the document to form the contract documents. These contract documents bind the GC to their dictates and directions and, at times, conflict with the terms and conditions of the construction agreement."

    Yeah, that's why we create the drawings and specifications in the first place.  That's what the Building Department expects to see built.  Exactly what are you complaining about?

    "By appearances, the architectural community has recently expanded the reach of the specifications and drawing notes to place undue risk to the contractor. The zeal to re-allocate risk to the contractor is now beyond the norm."

    Sorry, not following this.  Having the GC follow plans and specs is placing "undue risk" on the GC?  Exactly how?  Only way I'm following this argument is that the GC is planning to build something different than shown on the plans.  And, BTW, what do you think GC's are doing with their blizzard of RFI's on a project?  Many are so basic that they stretch believability that a competent GC would write them, unless the real intent of an RFI is to transfer liability on an issue.

    In my years in the profession I've worked with a number of GC's, on projects where the construction budget was only a few thousand dollars to over $300 million.  Most of them are willing to work together, and I have been willing to make adjustments to the documents based on the GC's plans for sequence of construction.

    Most GC's do not provide a submittal schedule, which is surprising since they know when the item needs to be installed, when it needs to arrive on site, when it needs to be manufactured so that it can arrive on site and be installed on time, how long it will take to create the submittal, and how long the review period is.  In fairness to the GC, often their awarding of the subcontract is held up by the owner until the last minute, which creates time pressure up and down the line.

    For some large scale projects here in Las Vegas, I have found that the MEP subs were sending a "bootleg" copy of their submittals directly to my engineers at the same time it was being given to the GC for his review.  By the time the paperwork finally reached the engineer in question he had a fair amount of time to review it, and so held on to the formal submittal for a shorter period of time.  When I found out that this was going on I didn't stop it - after all, how often am I as an architect going to comment on a boiler submittal?

    Leo A. Daly recently announced that they would not longer stamp submittals on their projects.  You can see their explanation in the Construction Contract Administration document library.  Mr. Munhall makes a persuasive argument, and maybe it's a position that architects as a profession can follow.  Then Mr. Shapiro and his fellow GC's will have less risk foisted on them by the architects as well.

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    Klaus Steinke AIA
    Las Vegas NV
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