Construction Contract Administration

In the CCA Knowledge Community Town Hall meeting, a question was raised concerning recommendations regarding the architect's participation with Construction Management Software (CMS) and/or the need to have one's own software platform to manage administration of the contract for construction internal to the design team.

This blog post is a follow up to that question and intended to generate dialogue and perspectives on this topic. The dialogue and perspectives that are gathered by the post will contribute to the understanding of content that should be comprehensively addressed in a white paper on this topic, currently under development.

It is important to recognize, if the CM's/GC's CMS is the only software or process that is tracking the design teams obligations, then they are not only using the software for Construction Management, but they are creating and are in control of the "Record for Administration of the Contract for Construction" which can provide basis for claims.

When engaging with these platforms or deciding on investing in the use of a platform for the design team, there are 4 critical aspects associated with one's risk management in "administering the contract for construction" that are worth consideration.

1. Is participation in a CM's/GC's CMS a condition of your contract and does participation create risk by extending your obligations beyond your contract obligations?
2. Does participation in a CM's/GC's CMS have a negative impact on the design team's labor costs and efficiency?
3. Is participation in a CM's/Gc's CMS producing an accurate record of the "administration of the contract for construction"?
4. Does time spent in a CM's/GC's CMS benefit the design team's enterprise execution of "administering" contracts for construction?

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Michael Zensen
Vice President
CannonDesign
St. Louis, Missouri
He/Him
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1 - Not usually, and YES

2 - YES

3 - NO.  When the record is administered by the CM/GC, it is usually INACCURATE.  When the architect participates in it, the Architect is VALIDATING this inaccuracy.   That's what the attorney for the CM/GC will say in court.

4 - NO.  In order to improve the efficiency of your entire CCA operation, you need to know the status of ALL DOCUMENTS in ALL the active projects in the firm. This is impossible to do unless you are logging submittals and RFI's, issuing ASI's, CPR's & CO's, Certifying applications for payment, and issuing Field Visit Reports from some sort of centralized program.  Unless you can MANDATE that the GC/CM use a specific program in EVERY project, then you need to have your own system.

For more on this topic, read the discussion threads in this same Forum, from a few years back:

"Counter-logging" policy

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Gustavo Lima AIA
Gustavo A. Lima Architecture, PC
Williamsville NY
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Michael:

My take is a bit different as I am a sole practitioner, manage a smaller # of projects, and have been practicing long enough to have dealt with paper submittals for most of my career. I offer the following:

1. Typically no, and I believe the risk is minimal if handled appropriately.
2. No, I don't believe it does. I maintain my own set of files which duplicate that which is uploaded to (or downloaded from) the CMS. While this does duplicate a portion of the effort, the duplication is only a few minutes to enter the information; however, it is far less time that it required to manage paper submittals. Therefore, I consider it a win.
3. Depends on the Contractor. If handled properly, the record should be accurate. However, the Contractor does have the ability to "play with" the information and an unscrupulous Contractor certainly can do so. Again, as I maintain my own files, I would never rely on the Contractor's CMS as an official record of the Project. The greatest issue I have is the Contractor posting submittals of samples before they are delivered to me, so I lose some review time, but if this happens, I just annotate it on the submittal, or require the Contractor to withdraw and re-submit with the corrected date.
4. I don't believe it is a benefit or a detriment. I view it merely as a communications tool - a means of transmitting information between the parties and recording that information.

As a small firm, I don't have my own internal software based system (unless you consider MS Word, MS Excel, and Bluebeam to be a software-based system). I download submittals and review on Bluebeam, finalize, and then upload back to the system. Communications with my consultants is handled outside of the Contractor's system as I do not want my subconsultants responding directly to the Contractor or having my communications with my subconsultants visible to the Contractor.

Again, as a small firm, I do not have the resources to have my own internal system or require that Contractors use a particular system. Large firms may have that leverage. Further, it might violate public bid law to stipulate the use of a specific system unless it is made available at no cost to the Contractor for its use. Also, consider, that Contractors use their system for integration of their subcontractors and suppliers, and that their use of a CMS system is far more extensive in that realm than its interface of with the Architect.

Yes, there are liability concerns but if considered primarily as a communications portal, with appropriate protocols, it should not create greater liability than Architects undertook with hard copies or with any other means of communication.

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Mark I. Baum, AIA
Mark I. Baum Architect LLC
New Orleans, LA
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1. Traditionally, my proposals have boilerplate exclusions for the use of the General Contractor's CM software except for the facilitation of transmittal of files, and then only if there is email confirmation of receipt of files.  Insofar as the Architect has to participate in some form of distribution mechanism for electronic RFI, submittals, etc., there should not be additional risk associated with utilizing the CMS as a file transfer protocol, so long as the architect maintains their own logs (as we always have since the days of paper documentation).
2. It can.  If the Architect is fully engaged in utilizing the CM software as a means of managing the review and response to submittals and RFI, and is also duplicating this effort under separate cover for their own records, it adds cost to the phase.  This again is why I typically allow our use only as a file transfer protocol.  
3. No.  The CMS typically only records dates and disposition of issues as dictated by the General Contractor.  For instance, an RFI that is responded to within twenty-four hours with the response being "build per plans and specs" may not ever get closed out by a GC that does not agree that the Contract Documents provide sufficient information for them to proceed.
4. No, the architect should not spend any time in the GC's CMS.  That is their internal means of communication with their subcontractors and each other, and if the architect is spending time in the software they could be exceeding their authority as contract administrator.

I find it helpful to think of the contractor's CMS as a reception desk.  They "drop off" the submittal or RFI and provide independent notice via e-mail that it is ready for the architect's engagement.  We retrieve the document(s) from the virtual reception desk, log receipt, and then process as we normally would in the absence of the CMS.  Once the architect and the architect's consultants have completed their review and response, the documentation is delivered electronically to the contractor and logged in the architect's system; what happens with that document after the contractor receives it is their business to administer.

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Joseph Stryker AIA
DTJ Design Inc
Marietta
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Hi Michael -

I work on a variety of small renovation projects and some large new work projects, so I would say this might not be the case for every instance.

1. No, it is not in our contracts.  And yest it definitely creates risk.
2. For me personally, yes it doubles my efforts because I know that eventually the design team is going to loose access to the GC's CMS project and there will be no record.  So I do my own tracking in my firm's tracking software also. I do know that a coworker of mine only uses the CMS and does not track in our software at all, it might be impacting him at all.
3. No, because it is usually more complicated than simply sending and receiving.  That is typically all they track.
4. Not really.  Especially when the project ends and the design team looses the access to the CMS project.

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Kimberly Cochrane AIA
SmithGroup
Franklin MA
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We work on medium to large public construction projects and we include a requirement in Division 01 that the GC/CM use and pay for an online CMS and that the Architect and Owner have access to it. However, we also maintain our own logs and these are stipulated as the "official" records for administration of the contract. GCs or CMs will often put their own due dates on various documents, which we largely ignore except to the extent that they can help prioritize certain issues for the OAC team. For example, the contract documents may say that we have XX days to review and respond to an RFI or to review submittals. But the GC may submit an RFI with a due date the next day so that it flags as red or something to that effect. We know, and we've made it clear in meetings that the review times as described in the contract documents and reflected in the Architects log will record actual review times and due dates. To answer the questions:

1. No, not a condition of our contract with the Owner. Participation has minimal risk so long as everyone understands that the CMS is just one tool we use during CA. It does not necessarily reflect the accurate condition of the record logs, but can be very helpful for file maintenance, easy access to documents, quick routing, and many other things. Clearly expressing the intent of the tool has been the key to mitigating risk for us. We have had to point out that just because something is flagged as "late" in the CMS does not mean that it is technically late...it just may be taking longer than the GC/CM wanted, and those are not the same thing. 
2. I don't know for sure, but I'd say it's time neutral at worst, perhaps a bit more efficient overall. We do have to log everything on our own side, but we've already accounted for that in our fees & staffing. CMS can save time routing & assigning tasks to team members, so that's nice. Also, it's useful to reconcile logs periodically - we often reconcile CMS logs with our own logs monthly and report back at OAC meetings. This reconciliation is typically to check in on status and assignment, and less to check on timing (which we manage in our logs). However, some CMS are clunky or have poorly functioning modules and those can be time consuming to work around. 
3. No, I would not say "accurate". But it is helpful to be able to point out the limitations or inaccuracies in the CMS logs by using our own at project meetings. This helps to keep the CMS logs presumed "authority" in check as well. 
4. Generally yes, but not always. They can be another tool that we can use to effectively administer contracts. So long as everyone involved understands the intent and limitations of the tools, they can be used to the benefit of the firm. 

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David Mentzer AIA
Dore & Whittier Architects, Inc.
Burlington VT
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1. Typically no, however we do have some clients that require the use of a CMS during design and construction (most are usually with a CMa). Yes, it can create a risk if the role and expectations are not clearly defined.

2. Yes, with some CMS that are cumbersome to use. It may not seem like a lot of extra time, but even a few minutes multiplied by just the number of submittals/RFIs can add up. We try to minimize our interaction with the CMS, much like others have noted, using it primarily for transmission of the submittal/RFI files. We have our own system we use to with our consultants and for the transfer of documents to the owner/contractor that is our record. Our system does integrate with some CMS to aid in logging. Although it can be duplicative process, we have things set up to help minimize any additional effort as much as possible.

3. It depends. Often where it is not an accurate record is when the GC/CM does not utilize the correct allotted A/E review times thus trying to create confusion on the due date. Although we comment on this early and often when needed, it still happens throughout the project. That is why it is important to have our own accurate record.

4. Depending on the CMS, it usually just adds an unnecessary layer to our workflow.

 

This is an oft discussed topic in our office so I enjoy seeing other's responses. Sometimes the biggest hurdle is figuring out the efficient way to integrate a CMS into our workflow for that project.  We have had to work with a variety of CMS and some are easier to work with than others.

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Sharon Day AIA
GWWO Architects
Baltimore MD
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