This month the Construction Specifications Institute (CSI) will hold its annual convention and the Specifications Consultants in Independent Practice (SCIP) will hold its annual meeting, both in conjunction with CONSTRUCT, an annual educational seminar and product expo.
CSI, SCIP and CONSTRUCT all focus on improving construction documents. So in my own attempt to improve the industry, I want to share examples of what not to do - taken from a publicly bid project for a state agency currently under construction.
The general contractor (GC) for the project contacted me upon recommendation from an architect who was not involved in the project. The GC believes he is being asked to provide work that is beyond what is required by the contract. The GC wanted an opinion about his position.
The details of the dispute, although important to the GC, are not the subject here. I believe it is more important to discuss the quality of the documents and the departures from best practices and contractual requirements that contributed to the dispute.
The GC provided copies of the project drawings, specifications and three addenda for review. The last addendum was issued Nov. 2012. My first step was to verify the documents I received. Several drawing title blocks showed three revisions.
Best Practice Departure: Bulletins are commonly used to modify contract documents after awarding the contract. Common general conditions published by AIA and EJCDC use the term "modification" rather than bulletin. For this project the General Conditions define "Modification Order" as the means to modify the construction contract, and "Bulletin" is undefined.
Contractual Question: The General Conditions of this contract define "addenda" as modifications to the contract documents, issued before opening of bids. The July 2013 Addendum #3 was issued during construction, but used the same name as the addendum issued during bidding. Are bulletins and addenda issued during construction binding since neither are a means to modify this contract?
The project's General Conditions addressed the method for resolving discrepancies and omissions in the documents. The GC is required to ask for written instructions when "it appears that various instructions are in conflict." This seems a reasonable means to resolve discrepancies: ask the question and get an answer. However the General Conditions continue and establish the following order of precedence:
- Executed Construction Agreement
- Proposal Section
- Special Provisions
- General Conditions
- (State) DOT Supplemental Specifications
- (State) DOT Specifications
- Cited Standards for Materials or Testing
Primary Best Practice Departure: Setting an order of precedence automatically resolves conflicts between the construction documents. The GC is able to rely on the order of precedence to determine what document prevails. An order of precedence may sound like a good idea, but it may produce the wrong results by giving preference to the document with the incorrect information. It is always better to require the GC to ask for a clarification. Do not rely on a predetermined automated resolution.
Secondary Best Practice Departure: Conditions of the Contract include General Conditions and Supplementary Conditions, not Special Provisions. Even the General Conditions for this project state in the first paragraph that modifications will be made by the Supplementary Conditions, yet no Supplementary Conditions exist for this project.
Contractual Question: The stated order of precedence includes only state DOT specifications. The project specifications are not even considered in the order of precedence, so they have no effect on resolving discrepancies. If project specifications cannot resolve discrepancies, can the specifications contribute to discrepancies, and can the specifications be enforced?
Project Contract Documents
The Construction Agreement defines the Contract Documents for this project as:
- Notice to Bidders
- Bid Specifications
- Contractor's Proposal (as accepted)
- Contract Agreement
- All Addenda
- Other written instructions given by (owner)
Best Practice Departure: Bidding requirements are for the sole purpose of securing a valid bid that can be used to create a contract. Bidding requirements such as Notice to Bidders, Instructions to Bidders, and the Proposal should not become contract documents because the information in the documents does not apply to construction. The pertinent information from the proposal (price and time) should be incorporated into the agreement.
Primary Contractual Question: Must the GC pay any attention to the drawings, the General Conditions, or the Special Provisions? None of these are defined as contract documents. The term "Bid Specifications" is not defined anywhere, although "Specifications" are defined by the General Conditions as the bound "Project Manual."
Secondary Contractual Question: If the specifications are the bound Project Manual, is there any need to individually identify documents the Project Manual contains? By definition, all bidding requirements (see discussion above) and all appendix documents contained in the Project Manual are contract documents. However, appendix documents are often provided as information, only, and are not intended as contract documents.
Another Contractual Question: Does the heading "CONTRACT DOCUMENTS" that appears in the General Conditions and includes plans, specifications, working drawings, and catalog cuts, define what is considered a contract document? By the order of precedence (see discussion above), this listing is superseded by the Construction Agreement, so none of these are Contract Documents.
My Last Contractual Question: The General Conditions state that the "contractor shall make all working drawings" - as submittal documents for approval before proceeding with the work. Are these contractor generated working drawings contract documents, too, because they are listed under the CONTRACT DOCUMENTS heading in the General Conditions?
Only a Sampling
This is only a sampling of what was discovered in about 4-hours time. It may take an attorney to actually answer this GC's question about his responsibility because there are so many document conflicts.
All the conflicts discussed here occur in the owner's standard Division 00 Procurement and Contracting documents. The specifications are in a similar condition. Sorting out the requirements to know what the contractual obligations really are will take time - time that no one has. The project completion deadline is quickly approaching, and that deadline will trigger substantial liquidated damages.
A Call for Certified Construction Specifiers
CSI Certified Construction Specifiers (CCS) have proven their knowledge and ability to produce well coordinated construction documents complying with industry accepted best practices. Each CCS must pass two exams: the first based on CSI's Project Delivery Practice Guide to become a Certified Document Technologist (CDT) and the second based on CSI's Construction Specifications Practice Guide to become a CCS.
The conflicts and discrepancies found in this project's documents are what every specifier learns as a result of the CSI certification programs. Every one of the 1122 CCS specifiers will easily recognize all of the conditions discussed here.
I realize specifiers are a small voice, but every CCS will provide substantial value to construction projects. So, I urge all my fellow specifiers plus all architects, engineers, and contractors to promote, and I urge Owners to demand Certified Construction Specifiers for every construction project.
Together, let's improve document coordination and quality and to help avoid costly disputes.