Construction Contract Administration

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Thomas:

I am familiar with the term "trade partners"; however, my point is that you referred to them as your trade partners. I would simply suggest to be careful with such monikers. Frankly, I'm only familiar with the term being used as described in my initial response, which would not typically include the GM/CM. Certain subcontractors of the GM/CM's may be their trade partners. If referring to a "partnering agreement," then the GM/CM would be partners in that sense but as they do not perform a specific "trade" I still would not consider them to be "trade partners."

Regarding the soffit example, the Owner has the contractual right to accept non-conforming work to the extent it is not in violation of code or regulations. The Architect should provide a clear and objective opinion to the Owner as to the impacts of accepting the non-conforming work. Unfortunately, the only stick the Architect has is its relationship with the Owner and its ability to sway the Owner's decision but at the end of the day, it is the Owner's project. If the Owner has accepted the non-conforming work and if there is no agreed adjustment to the Contract Sum or Time, there is then no basis for withholding any payment. 

If other portions of the Work are affected by the non-conforming work, then it is the Contractor's responsibility to coordinate such adjustments, subject to your approval. If this requires additional effort on your part and your agreement with the Owner allows for it, it would be appropriate to advise the Owner at the time of the discussions regarding accept or reject the non-conforming work such that the Owner clearly understands that there may be some costs associated with the decision. Such costs could then be the basis of an adjustment to the Contract Sum, if the Owner wishes to place this responsibility on the Contractor.

Regarding shop drawings, or in a broader sense, submittals, yes, in my opinion, the Architect should keep a log of submittals. I don't believe it is your responsibility to actively track what has and has not been submitted but it should be on every OAC meeting agenda and the Architect should generally be cognizant of the timing of major submittals.

Regarding "supply chain issues", Anne Whitacre offered an excellent response, so I will not opine any further.

Hope this is helpful.

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Related to the shop drawing timing topic, I think that most of the "guide" specifications include text in Division 01 requiring submittal of a submittal schedule.  IF the GC does that, it can give the architect and consultants a clue as to when to expect submittals coming in, can maybe even plan ahead to have some more eyes to review such.

I've specified such calendars.  Can't recall ever getting them.  Would have appreciated seeing such.

I was pleasantly surprise several years ago when I was doing monthly site visits to send reports to a lender, for their information on progress on a project.  It was a bit bigger of a job than I was familiar with a certain local GC performing, and in the past they had displayed a rather cavalier attitude toward following contract documents - the "we know better, nobody does this", etc. attitude.  But, there in their project schedule on the wall in the job trailer, submittal and approval of shop drawings was part of the CPM logic for virtually every major product or subcontract.  I was impressed.  It did graphically show that whole flow of information.

As far as availability of materials, decades back when people still specified vinyl wallcovering for public toilet rooms, a principal in the firm added text requiring the wallcovering to be purchased within a month of the job starting (including extra stock), and stored.  He was tired of / frustrated with / having to do last-minute decor changes because a certain wallcovering was out of stock nation-wide, wouldn't be produced again until next year, etc.

Thomas:

I am familiar with the term "trade partners"; however, my point is that you referred to them as your trade partners. I would simply suggest to be careful with such monikers. Frankly, I'm only familiar with the term being used as described in my initial response, which would not typically include the GM/CM. Certain subcontractors of the GM/CM's may be their trade partners. If referring to a "partnering agreement," then the GM/CM would be partners in that sense but as they do not perform a specific "trade" I still would not consider them to be "trade partners."

Regarding the soffit example, the Owner has the contractual right to accept non-conforming work to the extent it is not in violation of code or regulations. The Architect should provide a clear and objective opinion to the Owner as to the impacts of accepting the non-conforming work. Unfortunately, the only stick the Architect has is its relationship with the Owner and its ability to sway the Owner's decision but at the end of the day, it is the Owner's project. If the Owner has accepted the non-conforming work and if there is no agreed adjustment to the Contract Sum or Time, there is then no basis for withholding any payment. 

If other portions of the Work are affected by the non-conforming work, then it is the Contractor's responsibility to coordinate such adjustments, subject to your approval. If this requires additional effort on your part and your agreement with the Owner allows for it, it would be appropriate to advise the Owner at the time of the discussions regarding accept or reject the non-conforming work such that the Owner clearly understands that there may be some costs associated with the decision. Such costs could then be the basis of an adjustment to the Contract Sum, if the Owner wishes to place this responsibility on the Contractor.

Regarding shop drawings, or in a broader sense, submittals, yes, in my opinion, the Architect should keep a log of submittals. I don't believe it is your responsibility to actively track what has and has not been submitted but it should be on every OAC meeting agenda and the Architect should generally be cognizant of the timing of major submittals.

Regarding "supply chain issues", Anne Whitacre offered an excellent response, so I will not opine any further.

Hope this is helpful.

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

If you and the Owner are using the AIA contracts and A201 General Conditions, you'll find under 

§ 3.10 Contractor's Construction and Submittal Schedules

§ 3.10.2 The Contractor, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, shall submit a submittal schedule for the Architect's approval. The Architect's approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, or fails to provide submittals in accordance with the approved submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals.

Part of your leverage can be two-fold. First, the contracts generally also call for the contractor to provide a schedule for review. If you don't see the submittals in it, insist that they be shown because they usually are part of good planning and any critical path.

Second, if you choose to really push it, you review a pay app every month. Not complying with the agreement and Contract Documents including General Conditions, could result in a recommendation to owner to withhold a portion of the payment requested until the Submittal Schedule is provided.  Remember that the Submittal Schedule also allows the architect to reasonably schedule their work and workload since the submittals tend to show up in bunches and have a pretty quick turn around time required.

Related to the shop drawing timing topic, I think that most of the "guide" specifications include text in Division 01 requiring submittal of a submittal schedule.  IF the GC does that, it can give the architect and consultants a clue as to when to expect submittals coming in, can maybe even plan ahead to have some more eyes to review such.

I've specified such calendars.  Can't recall ever getting them.  Would have appreciated seeing such.

I was pleasantly surprise several years ago when I was doing monthly site visits to send reports to a lender, for their information on progress on a project.  It was a bit bigger of a job than I was familiar with a certain local GC performing, and in the past they had displayed a rather cavalier attitude toward following contract documents - the "we know better, nobody does this", etc. attitude.  But, there in their project schedule on the wall in the job trailer, submittal and approval of shop drawings was part of the CPM logic for virtually every major product or subcontract.  I was impressed.  It did graphically show that whole flow of information.

As far as availability of materials, decades back when people still specified vinyl wallcovering for public toilet rooms, a principal in the firm added text requiring the wallcovering to be purchased within a month of the job starting (including extra stock), and stored.  He was tired of / frustrated with / having to do last-minute decor changes because a certain wallcovering was out of stock nation-wide, wouldn't be produced again until next year, etc.

Thomas:

I am familiar with the term "trade partners"; however, my point is that you referred to them as your trade partners. I would simply suggest to be careful with such monikers. Frankly, I'm only familiar with the term being used as described in my initial response, which would not typically include the GM/CM. Certain subcontractors of the GM/CM's may be their trade partners. If referring to a "partnering agreement," then the GM/CM would be partners in that sense but as they do not perform a specific "trade" I still would not consider them to be "trade partners."

Regarding the soffit example, the Owner has the contractual right to accept non-conforming work to the extent it is not in violation of code or regulations. The Architect should provide a clear and objective opinion to the Owner as to the impacts of accepting the non-conforming work. Unfortunately, the only stick the Architect has is its relationship with the Owner and its ability to sway the Owner's decision but at the end of the day, it is the Owner's project. If the Owner has accepted the non-conforming work and if there is no agreed adjustment to the Contract Sum or Time, there is then no basis for withholding any payment. 

If other portions of the Work are affected by the non-conforming work, then it is the Contractor's responsibility to coordinate such adjustments, subject to your approval. If this requires additional effort on your part and your agreement with the Owner allows for it, it would be appropriate to advise the Owner at the time of the discussions regarding accept or reject the non-conforming work such that the Owner clearly understands that there may be some costs associated with the decision. Such costs could then be the basis of an adjustment to the Contract Sum, if the Owner wishes to place this responsibility on the Contractor.

Regarding shop drawings, or in a broader sense, submittals, yes, in my opinion, the Architect should keep a log of submittals. I don't believe it is your responsibility to actively track what has and has not been submitted but it should be on every OAC meeting agenda and the Architect should generally be cognizant of the timing of major submittals.

Regarding "supply chain issues", Anne Whitacre offered an excellent response, so I will not opine any further.

Hope this is helpful.

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Joel:

Arlen Solochek's response is, as always, spot on. I agree that obtaining a submittal schedule is difficult but if it is a requirement of the Contract, you can enforce it as Arlen states. In your Division 01 or in revisions to the A201, it can be made a pre-requisite for the initial application for payment or, as Arlen wrote, funds can be withheld, and a deductive CO could be written for such Work of the Contract not performed. Also, per the A201, the requirements for the Architect's timely review are different if a Submittal Schedule is not provided, although the Architect should be careful to still provide a diligent and timely review. 

If a Submittal Schedule is not provided, and the Contractor dumps many submittals in your lap, then I recommend that you respond to the Contractor in writing as to your plan for review, your schedule, and inquire as to any priority the Contractor may wish to facilitate timely procurement. Also, if they dump numerous submittals at once, I expect that the Contractor did not diligently perform its obligation for review for compliance with the Contract Documents and for coordination with other trades. If you find that to be the case, reject and return those submittals without review.

Its mostly a matter of the Architect consistently and diligently enforcing ALL requirements of the Contract or, by action or inaction, you may be effectively waiving such requirements. Granted, this is not always easy to do, but keep in mind that, as the Architect, your duty is to comply with the Standard of Care, not to mitigate the Contractor's failures. Act in a professional and diligent manner, and do not be petty by deliberately dragging your feet on your obligations.

Regarding adding text that requires purchasing of materials up front, just make sure that the Owner is on board as the Contractor should then be paid for those materials as Stored Materials and the cost of warehousing same, until needed for installation.

If you and the Owner are using the AIA contracts and A201 General Conditions, you'll find under 

§ 3.10 Contractor's Construction and Submittal Schedules

§ 3.10.2 The Contractor, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, shall submit a submittal schedule for the Architect's approval. The Architect's approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, or fails to provide submittals in accordance with the approved submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals.

Part of your leverage can be two-fold. First, the contracts generally also call for the contractor to provide a schedule for review. If you don't see the submittals in it, insist that they be shown because they usually are part of good planning and any critical path.

Second, if you choose to really push it, you review a pay app every month. Not complying with the agreement and Contract Documents including General Conditions, could result in a recommendation to owner to withhold a portion of the payment requested until the Submittal Schedule is provided.  Remember that the Submittal Schedule also allows the architect to reasonably schedule their work and workload since the submittals tend to show up in bunches and have a pretty quick turn around time required.

Related to the shop drawing timing topic, I think that most of the "guide" specifications include text in Division 01 requiring submittal of a submittal schedule.  IF the GC does that, it can give the architect and consultants a clue as to when to expect submittals coming in, can maybe even plan ahead to have some more eyes to review such.

I've specified such calendars.  Can't recall ever getting them.  Would have appreciated seeing such.

I was pleasantly surprise several years ago when I was doing monthly site visits to send reports to a lender, for their information on progress on a project.  It was a bit bigger of a job than I was familiar with a certain local GC performing, and in the past they had displayed a rather cavalier attitude toward following contract documents - the "we know better, nobody does this", etc. attitude.  But, there in their project schedule on the wall in the job trailer, submittal and approval of shop drawings was part of the CPM logic for virtually every major product or subcontract.  I was impressed.  It did graphically show that whole flow of information.

As far as availability of materials, decades back when people still specified vinyl wallcovering for public toilet rooms, a principal in the firm added text requiring the wallcovering to be purchased within a month of the job starting (including extra stock), and stored.  He was tired of / frustrated with / having to do last-minute decor changes because a certain wallcovering was out of stock nation-wide, wouldn't be produced again until next year, etc.

Thomas:

I am familiar with the term "trade partners"; however, my point is that you referred to them as your trade partners. I would simply suggest to be careful with such monikers. Frankly, I'm only familiar with the term being used as described in my initial response, which would not typically include the GM/CM. Certain subcontractors of the GM/CM's may be their trade partners. If referring to a "partnering agreement," then the GM/CM would be partners in that sense but as they do not perform a specific "trade" I still would not consider them to be "trade partners."

Regarding the soffit example, the Owner has the contractual right to accept non-conforming work to the extent it is not in violation of code or regulations. The Architect should provide a clear and objective opinion to the Owner as to the impacts of accepting the non-conforming work. Unfortunately, the only stick the Architect has is its relationship with the Owner and its ability to sway the Owner's decision but at the end of the day, it is the Owner's project. If the Owner has accepted the non-conforming work and if there is no agreed adjustment to the Contract Sum or Time, there is then no basis for withholding any payment. 

If other portions of the Work are affected by the non-conforming work, then it is the Contractor's responsibility to coordinate such adjustments, subject to your approval. If this requires additional effort on your part and your agreement with the Owner allows for it, it would be appropriate to advise the Owner at the time of the discussions regarding accept or reject the non-conforming work such that the Owner clearly understands that there may be some costs associated with the decision. Such costs could then be the basis of an adjustment to the Contract Sum, if the Owner wishes to place this responsibility on the Contractor.

Regarding shop drawings, or in a broader sense, submittals, yes, in my opinion, the Architect should keep a log of submittals. I don't believe it is your responsibility to actively track what has and has not been submitted but it should be on every OAC meeting agenda and the Architect should generally be cognizant of the timing of major submittals.

Regarding "supply chain issues", Anne Whitacre offered an excellent response, so I will not opine any further.

Hope this is helpful.

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way. 

Thanks, Mark and Arlen -

I am all for the even administration of the contract's terms and agree that using the Owner's power of the purse can be effective.  We also   often had conversations about the appropriateness of paying for preparation of bidder-designed shop drawings, particularly fire sprinklers.  Obviously some real work was done, real cost expended by the fire sprinkler subcontractor, but it wasn't "work in place" installed in the Owner's building yet.  A gray area.  I was inclined to release payment if 1) the schedule of values showed it as a separate line item and mechanical engineer said the amount was reasonable; GC had reviewed and noted coordination issues with ductwork design; and 3) fire marshall had reviewed and approved.  At that point, even if the GC suddenly vanished, there was something for the bonding company's replacement contractor to work with.

We would typically react favorably when the GC asked if they could split the rebar submittal up to expedite the delivery of footing reinforcing, even though the spec section said "give it to us in one package."   Similarly, for longer-lead  electrical items (transformers, switchgear, and the like), electrical engineers would be ok with bending their "All our stuff in only one submittal" text in their "general electrical requirements" section.

I do like the suggestion to include "in the event of no submittal schedule, no delay claims related in any way to submittal processing" is a good idea.  Might be hard to invoke / document, GC's project manager would soon be shrewd enough to not mention slow submittals for delays and costs.

Often there is a list of prerequisites for the first pay application.  The submittal schedule clearly has a place there.  "No, we won't authorize payment  for mobilization, etc., until we have seen (and approved?)  your schedules" is a handy tool.  

For Bob Aldridge's fussy approach to getting the vinyl wallcovering that he wanted, I do agree that paying for it as a stored material makes sense.  A  pretty minor bit of the overall job cost, to be sure.  

Joel:

Arlen Solochek's response is, as always, spot on. I agree that obtaining a submittal schedule is difficult but if it is a requirement of the Contract, you can enforce it as Arlen states. In your Division 01 or in revisions to the A201, it can be made a pre-requisite for the initial application for payment or, as Arlen wrote, funds can be withheld, and a deductive CO could be written for such Work of the Contract not performed. Also, per the A201, the requirements for the Architect's timely review are different if a Submittal Schedule is not provided, although the Architect should be careful to still provide a diligent and timely review. 

If a Submittal Schedule is not provided, and the Contractor dumps many submittals in your lap, then I recommend that you respond to the Contractor in writing as to your plan for review, your schedule, and inquire as to any priority the Contractor may wish to facilitate timely procurement. Also, if they dump numerous submittals at once, I expect that the Contractor did not diligently perform its obligation for review for compliance with the Contract Documents and for coordination with other trades. If you find that to be the case, reject and return those submittals without review.

Its mostly a matter of the Architect consistently and diligently enforcing ALL requirements of the Contract or, by action or inaction, you may be effectively waiving such requirements. Granted, this is not always easy to do, but keep in mind that, as the Architect, your duty is to comply with the Standard of Care, not to mitigate the Contractor's failures. Act in a professional and diligent manner, and do not be petty by deliberately dragging your feet on your obligations.

Regarding adding text that requires purchasing of materials up front, just make sure that the Owner is on board as the Contractor should then be paid for those materials as Stored Materials and the cost of warehousing same, until needed for installation.

If you and the Owner are using the AIA contracts and A201 General Conditions, you'll find under 

§ 3.10 Contractor's Construction and Submittal Schedules

§ 3.10.2 The Contractor, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, shall submit a submittal schedule for the Architect's approval. The Architect's approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, or fails to provide submittals in accordance with the approved submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals.

Part of your leverage can be two-fold. First, the contracts generally also call for the contractor to provide a schedule for review. If you don't see the submittals in it, insist that they be shown because they usually are part of good planning and any critical path.

Second, if you choose to really push it, you review a pay app every month. Not complying with the agreement and Contract Documents including General Conditions, could result in a recommendation to owner to withhold a portion of the payment requested until the Submittal Schedule is provided.  Remember that the Submittal Schedule also allows the architect to reasonably schedule their work and workload since the submittals tend to show up in bunches and have a pretty quick turn around time required.

Related to the shop drawing timing topic, I think that most of the "guide" specifications include text in Division 01 requiring submittal of a submittal schedule.  IF the GC does that, it can give the architect and consultants a clue as to when to expect submittals coming in, can maybe even plan ahead to have some more eyes to review such.

I've specified such calendars.  Can't recall ever getting them.  Would have appreciated seeing such.

I was pleasantly surprise several years ago when I was doing monthly site visits to send reports to a lender, for their information on progress on a project.  It was a bit bigger of a job than I was familiar with a certain local GC performing, and in the past they had displayed a rather cavalier attitude toward following contract documents - the "we know better, nobody does this", etc. attitude.  But, there in their project schedule on the wall in the job trailer, submittal and approval of shop drawings was part of the CPM logic for virtually every major product or subcontract.  I was impressed.  It did graphically show that whole flow of information.

As far as availability of materials, decades back when people still specified vinyl wallcovering for public toilet rooms, a principal in the firm added text requiring the wallcovering to be purchased within a month of the job starting (including extra stock), and stored.  He was tired of / frustrated with / having to do last-minute decor changes because a certain wallcovering was out of stock nation-wide, wouldn't be produced again until next year, etc.

Thomas:

I am familiar with the term "trade partners"; however, my point is that you referred to them as your trade partners. I would simply suggest to be careful with such monikers. Frankly, I'm only familiar with the term being used as described in my initial response, which would not typically include the GM/CM. Certain subcontractors of the GM/CM's may be their trade partners. If referring to a "partnering agreement," then the GM/CM would be partners in that sense but as they do not perform a specific "trade" I still would not consider them to be "trade partners."

Regarding the soffit example, the Owner has the contractual right to accept non-conforming work to the extent it is not in violation of code or regulations. The Architect should provide a clear and objective opinion to the Owner as to the impacts of accepting the non-conforming work. Unfortunately, the only stick the Architect has is its relationship with the Owner and its ability to sway the Owner's decision but at the end of the day, it is the Owner's project. If the Owner has accepted the non-conforming work and if there is no agreed adjustment to the Contract Sum or Time, there is then no basis for withholding any payment. 

If other portions of the Work are affected by the non-conforming work, then it is the Contractor's responsibility to coordinate such adjustments, subject to your approval. If this requires additional effort on your part and your agreement with the Owner allows for it, it would be appropriate to advise the Owner at the time of the discussions regarding accept or reject the non-conforming work such that the Owner clearly understands that there may be some costs associated with the decision. Such costs could then be the basis of an adjustment to the Contract Sum, if the Owner wishes to place this responsibility on the Contractor.

Regarding shop drawings, or in a broader sense, submittals, yes, in my opinion, the Architect should keep a log of submittals. I don't believe it is your responsibility to actively track what has and has not been submitted but it should be on every OAC meeting agenda and the Architect should generally be cognizant of the timing of major submittals.

Regarding "supply chain issues", Anne Whitacre offered an excellent response, so I will not opine any further.

Hope this is helpful.

Mark,

I appreciate your thoughtful and thorough response. With regard to your first question, "trade partners" is the term we use to refer to the GC/CM and their subcontractors. It's intended to present a unified, team-oriented process to the Owner, but you are correct that we have no contractual relationship with them.

In one particular project, the framing of a soffit cove condition was inconsistent with the design intent such that spatial relationships would not be realized upon completion. Despite multiple field discussions with the superintendent, boarding began without addressing the framing concerns. Since this did not impact the Health, Safety, or Welfare of the public, and because correcting the configuration would impact the Project schedule, the Owner chose not to pursue reframing. And because the framing had been "completed" (ie, performed), also did not wish to withhold from the Contractor's requested pay application. Is it our responsibility within the Standard of Care to coordinate or sequence this (re)work? Obviously not, though it does impact the design intent.

Similarly, should it be on us to track which shop drawings packages have or have not been submitted? What of the inevitable substitution request, which claims "supply chain issues" as the justification for providing an alternate product? And if a proposed substitution is deemed not equal, are we then obligated to source an equivalent variation, or defer to the Contractor's assurance that no other "equivalent" product is available?

Mr. Stablein:

I have been pondering your post over the weekend and remain perplexed. Presuming you are working in the role of an Architect, it is unclear to me who you are referring to as YOUR "trade partners." Trade partners are generally considered to be those subcontractors that are engaged early in a CM type project delivery method who provide design input during the design phases. This is a term that somewhat elevates these parties from subcontractors, but contractually are subcontractors. These entities work for the CM or Contractor and are not in contractual privity with the Architect or the Owner. The Work is coordinated, primarily, by the CM or General Contractor, and to a limited degree by trade partners or subcontractors with respect to their particular trade. Considering such trade partners to be "yours" may cross the line as to your obligations, as the Architect, to the Owner. It is also not clear in your post how the "Design Intent" is not being maintained.

While surpassing the Standard of Care with respect to your own diligence is not necessarily a bad thing, the Architect should not endeavor to perform the obligations of the CM or the Contractor, even if they are concerned that such coordination is not being performed. Stay in your lane. For example, if the contractually required coordination is not evident in the submittals, the submittals should be rejected with explanation citing the contract requirements not fulfilled. If coordination drawings are required prior to submittals, then the submittals should not be reviewed without them and should be rejected. If the Work is behind schedule, this should be noted in your field observation reports and addressed forthrightly at OAC meetings. If the CM or Contractor claims it is being delayed because the Architect is not approving its submittals, you can then point out, with authority, the contractual obligations that have not been reasonably satisfied and that the Contractor has been notified in a timely manner. I recommend triaging submittals for general compliance with submittal requirements, and promptly (within 1-3 days) returning non-compliant submittals without review. Assure that your consultants follow the same procedures. Similarly, unaddressed field observations requiring corrective work should be reviewed at each OAC meeting and the Contractor's proposed actions and schedule to address each item should be recorded in the minutes.

With respect to the Owner "having little appetite to withhold pay," is the Owner paying out higher amounts than you, as the Architect, have certified? The AIA documents place the responsibility for certifying the Application for Payment squarely in the Architect's court. Have you followed the requirements of the A201 and set forth in writing the reasons that monies have not been certified? Typically, the Architect reviews a draft copy and reaches agreement with the Contractor. However, if the Contractor balks and submits amounts in excess of the that which the Architect deems has been earned, it must reject those amounts with stated cause. If the Owner pays more than the Architect certifies, which is rare, that is at the Owner's peril.

If the Architect adheres to and reasonably enforces the requirements set forth in the Contract Documents and, in particular, the AIA A201 and relevant Division 01 Sections, and does not act in an arbitrary and capricious manner, then the CM or Contractor will have limited opportunity to prevail on unwarranted delay claims.

The issues you have addressed appear to result primarily from not consistently and vigorously enforcing the requirements of the Contract Documents. I am not suggesting a combative approach but rather a firm, professional approach. The procedures and requirements contained in the AIA form contracts and documents provide a road map for a successful project, but only if the parties understand that the requirements of the Contract will be uniformly enforced and procedures adhered to – they are not optional provisions. The Architect's failure to consistently administer the Contract leads to claims. The proper tone should be set at the Pre-Construction Conference, by the OAC Meeting agenda, through submittal reviews, and by every other action of the Architect.

It seems that lately our trade partners are increasingly unable or unwilling to fulfill their obligations of coordinating the Work. In order to maintain the design intent, we are finding ourselves in the uncomfortable position of having to surpass the standard of care. I get the sense this trend is a growing concern transcending region or market sectors, and I'm curious how others are addressing it, both at a firm level and on a broader industry level. 

Examples include addressing field observation reports, effectively a rolling punch list; ensuring submittals are submitted completely and timely; coordinating overhead systems' locations to preserve ceiling heights. In my experience, Owners have had little appetite to withhold pay or anything else which may impact the turnover date. Contractors seem to have figured out they can delay taking action then use schedule to justify doing it their way.