When a Specifier Engages in Magical Thinking

One of the hallmarks of magical thinking is the notion that if you think a thing, you can make it happen, simply by thinking it.  This is often reinforced by our tendency to see connections between events and our propensity to interpret those connections as involving causation.  A specifier who engages in magical thinking anticipates that by writing something in a project specification, it will come to pass, no matter how nonsensical or wrong.

Magical Thinking - A Case Study

An architect we are working with hired a specialty consultant to help them design terra cotta-faced architectural precast concrete wall panels for a large university housing project.  Conspectus wrote the specifications for almost all the other architectural components on the project, and the specialty consultant provided the specifications for the precast wall panels.  We were asked by our client (the architect) to review and comment on the precast specifications.

The third party specifier wrote the precast specs as a delegated
design
item.  This makes sense;
portions of precast work, like internal reinforcing of the panels and
attachment components required to hang the precast to the building structure
are frequently delegated to the precaster's structural engineers.  They have the detailed knowledge necessary to
engineer those elements.  The building
code allows this, but limits the scope of delegated design to the portion of the
work that can be designed by the contractor (or subcontract's) licensed
professional.  In this case, the primary
design professional retains responsibility for specifying the requirements to
which the delegated design must perform.  

The specialty consultant's specs, unfortunately, delegated
far more responsibility to the contractor than reasonable.  One critical provision read:

The Contractor shall design, engineer, test, fabricate, deliver, install, and guarantee all construction necessary to provide the [precast] as a complete airtight and watertight enclosure of the building.  The Contractor shall provide all materials, labor, equipment, and services necessary to this end.  The [precast] shall be complete in every respect, including all measures that may be required to that end, notwithstanding any omissions or inadequacies of Drawings and/or Specifications.

Well!  It's in the
specs so this is definitely going to happen, right?  The spec section goes on for another 40
pages, but why bother? This one paragraph tells the contractor that he's
responsible for everything, notwithstanding what's shown on the drawings and
written in the other 40 pages of this spec section.  In fact, the spec attempts to transfer
responsibility for not only the precast, but the entire building envelope!  Magic!

The specification also attempted to force the contractor to
take long-term financial responsibility for failures in the envelope, as
follows:

The Contractor shall agree to indemnify the [owner] and Architect against any defects in the design, workmanship, quality of materials, water-tightness or performance of the Work of this Section and to repair or replace defective design, workmanship or materials of the [precast] during the warranty period(s).

Does the consultant think the contractor will agree to this?
It's in the spec, so it will magically come to pass!  But this is a big problem.  This essentially amounts to the unlicensed
practice of law since it is creating legal duties and obligations.  Also, it's unstated whether the clause only
limits the contractor's liability for engineering failures discovered after the
end of the warranty but still within the statutes of limitation and repose.

By including this in the project manual along with the rest
of the specifications, the architect is likely changing the risk profile for
himself and the owner in unintended ways.

Conclusion

Design professionals need to understand the limits of delegated design, but more than that, they must understand the roles and responsibilities of various parties to a construction contract.  The author of this specification clearly understood neither, and created a spec containing unenforceable, nonsensical provisions that abdicated design responsibility and created massive risk for the whole team, especially if the owner doesn't understand and hasn't consented to what was being done. 

The way to avoid magical thinking in specifications is to know the purpose of specifications, and respect what they can and cannot accomplish, and to make sure the owner is informed and consents to every material decision.

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