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The Construction Contract Administration Knowledge Community (CCA) has been established to help our members better understand the issues, actions and resultant impact of the decisions required in this often neglected part of Project Delivery. It is our goal to provide clear answers to issues of concern to the Institute’s membership and share case studies and best practices. We further hope to provide guidance and direction in developing guidelines for new and evolving approaches to Project Delivery as well as guidance in the continuing education of our emerging young professionals.

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B-104 Contractual Obligations to Owner

  • 1.  B-104 Contractual Obligations to Owner

    Posted 04-09-2019 10:18
    I am working on a project that is in the final stages of punch list completion. The contractor provided a pencil copy of the final application for payment as well as documentation to generate a change order for a number of small items that the owner and clerk of the works asked the contractor to proceed with prior to submitting cost. The work has been completed but the contractor did not include a few of these items with his document to be included in the change order. We have a B-104 contract in place with the owner and I am wondering if I need to bring these items to the contractors attention?

    Thank you

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    Kurt Schnarr Assoc. AIA
    In Site Architecture
    Perry NY
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  • 2.  RE: B-104 Contractual Obligations to Owner

    Posted 04-10-2019 17:24
    I would say you should raise the issue.

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    Burton L. Roslyn, FAIA
    President
    Roslyn Consultants, LLC
    Roslyn Heights, New York
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  • 3.  RE: B-104 Contractual Obligations to Owner

    Posted 04-10-2019 17:40
    Technically, maybe maybe not.  THe contractor is obligated under most contracts to notify an owner (or architect) if it proceeding with work that either increases the contract sum or contract time.  Without that notification within the days required in the owner-contractor agreement, technically, they may lose an ability to make a cost claim. 

    Ethically, yes, definitely add, process, and pay for the extras.  

    The goodwill and improved reputation for being a fair owner and fair architect pays back many times later on.  We hope that the items asked for were in writing at least, preferably in a CCD giving the contractor a legal approval to continue with the work, even with an agreement to submit a price later.  What we want to avoid is a whole bunch of new and unexpected costs or delay claims at the end of a project. As long as we all agree that the work was asked for, we've honored changes whenever we see them.

    Thanks,

    Arlen

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    Arlen M. Solochek FAIA
    Maricopa Community Colleges
    Associate Vice Chancellor for Capital Planning & Special Projects
    2411 West 14th Street, Tempe AZ 85281
    (480) 731-8232 |
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  • 4.  RE: B-104 Contractual Obligations to Owner

    Posted 04-10-2019 18:21
    Hi Kurt,
    In fairness to the contractor I would want to mention his/her oversights, but it would be prudent to discuss it with the owner first.

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    [Paul] [Potts]
    [President]
    [Mesa Corporation]
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    A'20 Call for speakers


  • 5.  RE: B-104 Contractual Obligations to Owner

    Posted 04-11-2019 17:59
    The last Pay Application is generally done to release the retention on a project and to do any reconciliation of the line items in the Schedule of Values that are unit priced based, if any.  If you still have some outstanding changes that have yet to be resolved, then by all means you need to have the discussion with your contractor.  The a Pay App can be processed for these changes.  The Final Pay App should come after the project has been accepted by the Owner and your notice of Completion has been filed.  Then the Final Payment can be made after the requisite 35 day lean release period (in California at least) and no protests from any subcontractor or supplier are filed.

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    Richard Panos AIA, CCM
    Director of Construction Management
    Simplus Management
    Cypress CA
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