Construction Contract Administration

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Kenneth Watthuber, AIA:

Generally Architects create their own roadblocks by being stubborn about resolving issues that may in the best interest of the project. It is common for AE to have the attitude that "everything rolls down hill", creating a very arrogant uncooperative atmosphere, rarely allowing a cumulative decision. This forces contractors to create more paperwork, RFI's for protection. The average contractor will always have a get it done attitude. The contract documents are constructed with open language that allow AE to revert any decision. Most issues have simple solutions, if the AE might realize their human and accounting for every detail in contract documents is impossible. As mentioned the eagerness of our society, is a failure for all. "What's wrong with admitting your mistakes"? If the AE were perfect in design of the contract documents, it would be easy to comply with producing what is the intent of the AE and Owner.

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With regards to discrepancies such as submittal turn around times, a competent GC should either recognize the specified requirements on the bid drawings or qualify to what they have included in their bid/price. The GC should be spelling out all inclusions and exclusions in his bid and these items should be discussed by O,A&GC before any contract is signed.

One way to optimize the process is by getting a GC involved early on. Working with a GC through the design phase can help owners and architects understand the costs, schedule and logistical impacts before a design is finalized. This will leave little opportunity for the Contractor to push blame back to an Architect.

Many times the drawings are not bid out until the design is finalized and the Contractor has little time to understand a design which took months to create. This can leave many questions unanswered.

The longer a Builder has to review a project the more complete and accurate his estimate will be. Again, leaving less chance for the Contractor to push blame back to an Architect.

Strong project management and communication on both "sides of the fence" is key and can eliminate many of these problem areas.

If one party is not meeting the expected requirements allowed by "disconnected contracts," bring it to the table and have the contract amended as soon as possible.

As I stated above and as proven in many successful projects.. a simple way to prevent much of this from happening is getting the Contractor involved on day 1.

I agree with Mr. Beyer, the documents need to be coordinated. And that doesn't just stop with the owner--it trickles down to the architect as the preparer of the specifications. The specifications writer should have access to the proposed Owner-Contractor (O/C) Agreement and the executed Owner-Architect (O/A) Agreement when preparing the Division 01 sections to make sure that obligations under those agreements are only further defined and not altered.

Referring to the example of submittals used in the article, if the proposed O/C agreement stipulates the the expected turna-around time for submittals, the the O/A agreement should state the same. If the O/A agreement stipulates a timeframe and the O/C agreement does not, then the specifications should define the timeframe for the contractor as it is defined in the O/A agreement. If the O/C agreement has a timeframe, but the O/A agreement does not, then, as the architect, you may have to have a discussion with the owner if you disagree with the timeframe to establish a one that is reasonable.

Other than the specifications and drawings, architects can't modify the terms of a construction agreement, and they can only modify the terms of their agreements with owners during the negotiation period prior to execution, or through whatever change mechanism is provided in the agreement.

The reason there may be conflicts is probably due to the fact that one or more parties failed to review all the documents prior to issuing or executing.

Well both the Architect and Contractor are in business to make money.
They both have their own self intrest at heart. One is selling a service and the other a product. The architect is supposed to represent the Owner. But what does he care if the contractor charges more if the architect make more based on a percentage of construction. The conflict does come in about time and products. The contractor wants to use the cheapest product and get things done as fast as possible, to make the most profit. Of couse the architect wants the products he specificed or equal and he want to have enough time to review submittals to catch any mistakes. Of couse, any mistakes in the drawing or submittals will result in a change order and more money for the contractor. So the contractor blames the architect for his added cost (and profits.)
The owner is the one who is in a lose, lose situation. While the architect points at the Contractor for not understanding the scope or intent of the drawings or asking questions in the bid process.

whoa. very interesting article.

Now flip the coin on the contractor for a moment. I deal with contractors on a daily basis as well as construction managers hired by the owner to act as, in their eyes I've heard, another level of quality control. In reality, the cm's I've dealt with only serve as another roadblock. The contractor - architect relationship is at best advesarial without having another party with no true investment or liability for the documents or construction. In my experience the cm usually comes down on the contractor's side if differences arise, then spin the owner's perception such that the architect appears to be uncooperative. In fact, the architect is responsible to the owner for ensuring what is built reflects the intent of the documents. If the contractor can't deliver, then perhaps the owner needs to more closely scrutinize his contractors qualifications and ability to perform the work. Typically, again in my experience, contractors who can't perform the work ususally try to deflect the blame to the architect by sending unnecessary rfi's and change requests causing delays that usually end with the contractor getting more money from the owner. All we ask as architect's without having the benefit of a contract with the contractor is that one thing - provide the intent of the documents - if the contractor can't deliver why should architect's take the blame Mr Shapiro? I attribute these attitudes, even mine, to our society's over-eagerness to be politically correct. What's wrong with saying, "Do the work you promised to do for the amount you promised, when you signed the contract!" Last time I visited my project site, I didn't see any 8-year olds swinging on jungle-gyms.

Where to start?

The article sub-head, "Using specifications and drawing notes to create an end-run around the contract", is odd, because the specifications and notes ARE PART OF THE CONTRACT.

And, as an attorney, (or as someone who reads and unerstand the English language), the author should be expected to know that "The General Conditions of the Contract for Construction", which outline the Architect's contractual obligations for submittal review, are also PART OF THE CONTRACT.

Not being an historian of the AIA Documents, I can't say with complete certainty, but I suspect that for at least 50 years, AIA's A201 General Conditions has required "sufficient time in the Architect's professional judgment to permit adequate review" of submittals, rather than specifying a fixed number of days.

And finally, if there are conflicts between the Architect's documents and the Owner's "contract" with the GC, the Owner should think about getting a different attorney.