Construction Contract Administration

Hello CCA Community;

Has anybody run into the requirement  in the DBIA contract #535 where they include submittals as a contract document? The AIA contract and Consesus Docs Contract both exclude the submittal. What is your experience using that contract? Anything we should worry about? Thoughts? 

PS sorry for mentioning DBIA on an AIA forum :)

Janene,

My guess for the shop drawings being listed as contract documents lies in the growing amount of delegated design that occurs in design/build.  More and more of the completion of design and then the construction documents is being transferred to subcontractors and suppliers. Effectively, they are producing many of the Construction Documents and as such, it's not until they have done that can the architect and engineer really see and review how the project will be built.  Their Construction Documents often can become and/or go directly into shop drawings ("drawings intending to show how a contractor's means and methods, and how they will fabricate and install the architect's/engineer's design") since it's a single entity doing both. I'd assume that the shop drawing produced by the subcontractor or supplier effectively becomes the equivalent of the architect's Construction Documents, which if we produced them, would be included in the enumerated Contract Documents.

Once other unrelated caveat for all of the architects reading this and who are involved in design/build using either DBIA's or that other organization's design/build agreements. This is based upon a recent claim that I am involved with. Look carefully and understand the payment withholding provisions of your agreement (DBIA  paragraph 6.4.1). In AIA agreements, payments to the architect cannot be withheld unless and until the architect is found to blame for something (B101,§ 11.10.2.2 for example, "...unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding."). Under DBIA and that other organization, the architect is treated much more like a construction subcontractor with the threshold required to withhold payments being much lower and simpler- the design/builder identifies a problem or dispute, notifies the architect, and has the ability to withhold contested amounts without and/or prior to the architect being found liable. Please be aware of this significant difference in leverage and be cautious. 

In the context of the DBIA 535 the term "submittals" does not mean shop drawings, product data, or other information submitted to an Architect/Designer for review to confirm suitability or compliance with Contract Document requirements during the CA process (like it would under the conventional three-party structure). In the 535, a "submittal" would be other stuff prepared by the Design-Builder and submitted to the Owner (or possibly AHJ or other regulatory entity) for approval. For example, project schedules, design documents like renderings, or finish selections, or room data sheets. The contract doesn't define the term "submittal" so it may be helpful to enumerate which submittals would be considered contractual. I would think schedule & warranties would be pretty obvious Submittal requirements that require Owner approval or acceptance and then become binding or enforceable. 

------------------------------
David Mentzer AIA
Dore + Whittier Architects, Inc.
------------------------------

You might do better defining these terms in your DBIA 540 "Standard Form of Agreement between Design-Builder and Design-Consultant" which will help you before you get into the DBIA  530 (Agreement) and 535 (General Conditions).   There are certainly conditions in design/build projects where large portions of the work are prepared by subcontractors, and as the design professional we may not have any ability to object to these parties.  However, in your agreement with the Design-Builder (ie, the Contractor) you can modify the agreement so that the design firm is decidedly not responsible for any work prepared by anyone other than the "Design Consultant and its subconsultants".   And of course, never commit to providing "full, coordinated and complete Construction Documents" (which is standard DBIA language).  Use modifying language provided by your attorney to keep yourselves committed to the standard of care and not some un-achievable version of perfection.      Adding a few paragraphs defining your responsibilities with regards to "delegated design" work will be useful too.  We provide design intent and criteria for that work but then it gets turned over to another licensed professional for completion.   

The submittals as Contract Documents needs a bit of nuance I think.

The Contract Documents are usually defined as a set of documents (drawings, written materials, electronic materials, etc.) that are referenced in the agreement between the owner and contractor that will be used to construct the project.  From that pure standpoint, the architect doesn't define what the Contract Documents are and in the AIA agreements, the definition for Contract Documents gets referred to and is found in the A201 General Conditions, again part of the agreement between the owner and contractor.

Before design/build and before a lot of delegated design, the Contract Documents, for all practical purposes, were the documents produced only by the architect. If you look at the latest B101, Owner-Architect agreement, there are many references to the Contract Documents and what the architect must do related to the "Contract Documents." For delegated design/performance contracting, the architect still is obligated to review contractor submittals to review that the contractor's design is consistent with the architect's performance criteria. I think that would still be the case in design/build if the contractor is providing additional design or engineering, and producing submittals based upon architect provided criteria.

Maybe where it's possible to establish some distance and less liability, perhaps it's necessary now to maintain reviews and customary liability and action for the submittals based upon the architect's criteria, but exclude any action, review, etc. for submittals provided based purely upon contractor provided criteria with no architect input. This may be easier in theory than in practice, for example when contractor designed work interacts with/attaches to/etc. work done or performance specified by the architect. It will be tough to look at only part of the submittal and close our eyes to the rest of it. 

Where the rubber will hit the legal road will be what should the architect have known and when about construction and submittals not associated with the architect's criteria if something goes wrong and some lawyer will drag everyone into the problem and let the jury sort it out.  

Janene,

We have dealt with this after contract termination in the middle of construction, though not with AIA contracts. Submittals been provided as a reference document for the incoming contractor; however, the requirement for new submittals for new work (example: the CFMF shop drawings were provided as a reference but not installed, the new contractor would still have to provide updated/new CFMF shop drawings for review and approval.) was still preleveant. 

Much of this had to be looked through by legal and acquisitions, so that might be another avenue for additional information. 

V/r,

s