I’m am getting really tired of publicly bid projects where the contractor purposely bids low to get the job then spends the rest of his time nickle and diming the owner to make money. A project I am working on now the saying is that the contractor is building a claim faster than the building.
Does anybody know of any book, or discussion group, or seminar that gives advice on how to cut the contractor off at the knees before he tries some on his usual nonsense?
Contractors are masters at finding the “glitches” in the documents. They thrive on these, and enjoy the hunt! All you can do is gain the client’s confidence, and build a mutual support that you will not honor nickle and diming. You may wear the contractors out, by reviewing all submittals, and rejecting most of them [only accept those that benefit the client, and make the project better]. Eventually the number of submittals may subside. As to claims, you have another “ball of wax”-- how valid are the claims as to time and/or money? What is the contractor using in the documents or the project procedures to develop these claims? Is something really[!] wrong?
I have done CA on many publicly funded building construction projects. From my experience:
I would not review submittals that were not specifically requested in the specifications - return with no action. If the first few submittals are not properly assembled or otherwise prepared, they go back without review. If its a substitution, same thing, make sure they have prepared it thoroughly. This can set them straight at the beginning. However, you must have prepared a good submittals section to back you up.
As to the nitpicking claims, there truly isn’t too much you can do except respond thoroughly and FAIRLY with your interpretations of the documents. If they have a legitimate claim, with proper back-up, you should pay it. Many contractors respond well to fairness, and it will make it easier to prevail on the claims that have less merit. Don’t arbitrarily reject potentially legitimate claims (unless you want to land in court defending that decision). Some architects let their pride, and their own vision of what they think the work should be get in the way of what the documents actually say. You know, the “it should be obvious what we meant” excuse. The contractor, at least in the beginning, hasn’t spent months poring over the documents like you have. He or she also should not be expected to “get it” - we need to show it.
Very important to this is client education. They need to know that there will be changes, and they need to know this long before bid time. Otherwise our effort at “education” seems self-serving if we are doing it at the same time we’re explaining why there is a legitimate big claim. My biggest headaches were ususally with the well-meaning but poorly informed volunteer building committees - they can be brutal, sometimes while you’re sitting there on the local access cable TV channel.
It can wear you down immeasurably if you let it. I’m out of that racket now, and am saner for it.
David -
You are so right - the public sector is a very different world because you must go with the “lowest, responsive, responsible” bidder. In my 30+ years working in and for the public sector, I have come across few good books to help the situation. I can suggest the following, however, which I think may prove helpful to you.
The Engineers’ Joint Contract Documents Committee (EJCDC) has issued numerous documents for engineers’ use. Two of them, I feel, offer good practical advise for architects and engineers:
Both can be ordered at http://ascestore.aip.org/ejcdc/
Other books that might help are the following:
Good luck - but don’t let the nickel and dime-ers get you down. Beat them at their own game.
Thanks Joe. I actually have book #1 by Civetello. I looked on Amazon.com and he has a new book out. Maybe I’ll (or the company) will buy it. I will check out the other books.
Thanks!
I agree with John. When it comes to claims, be FIRM but FAIR. And have good resources on construction costs so that claims can be evaluated against some sort of benchmark (is the contractor charging 15% more than industry pricing, or 315%?).
And client education - absolutely (but this works only to the point the client is willing to listen). That’s where credibility of the design team comes in. The more credible the documents and CA personnel, the better the chances of having a cooperative audience.
But the best way to difuse a claim-driven contractor is to remove weapons from his arsenal. There is no substitute you can buy from Amazon.com or anywhere else for a complete, well coordinated set of documents. Of course there are other factors, namely, the client wants it yesterday. In which case, I point out to clients the following:
Complete and Quality Documents.
Quick turn-around of Documents.
Low design fees.
Of these three attributes pertaining to the work products, unless they have unlimited time and money, they can pick any TWO they want. They don’t get all three. Its just a matter of which two. Its as simple as that. They need to understand that the two they select have a direct impact on the third.
They want it quick and cheap, then expect the quality to suffer.
They want it quick but of high quality, then expect it to cost more.
etc., etc.
Another good education tool would be to get the design team to review some of the RFI’s that come in. Let them see what sort of issues come up and questions get asked. Or better yet, have the CA take the design team member to a construction progress meeting. Let him/her sit there and listen to the documents come under fire by the contractor - in front of the client. And see the cost ramifications of the loopholes in the documents. And the client’s reaction. And the apparent helplessness of the CA when a credible defense can’t be mounted. It could be quite the eye opener.
Then, after the meeting, take the design team member aside and explain the subtleties of one of the basic tenets of the Contract Documents - the contractor bid, and is contractually required to build, only that which is indicated, and not what was INTENDED.
I believe that the more meetings of this nature that take place, the better documents will get.
Its called feedback.
Unnecessary or Frivolous RFIs: In the “Requests for Interpretation (RFIs)” article of Section 01310, MasterSpec has the following note:
“If needed, insert requirements for frivolous RFIs. Some owners and design professionals include a provision that assesses the cost of the design professional’s time and materials to Contractor for unnecessary or frivolous RFIs.”
Has anyone included such a provision? What does it say? How has it worked?
I’m sorry, but I don’t have a copy of MasterSpec, so do they actually define “frivolous RFI”. I’m not sure that using Webster’s definition for “frivolous” is going to be adequate. Unless this is defined, won’t there be a gray area at some point as to whether it is or isn’t frivolous? A design professional might think that an RFI is frivolous, but to the contractor, perhaps it is truly legit.
And, begging the question, what about “frivolous” change orders, etc.?
The note about frivolous RFIs is in an editor’s note. ARCOM is trying to advise the specifier that this section does not include language that attempts to control the number of RFIs. If you want to do that, you need to craft the language yourself. A common point I’ve seen used as a way to determine if an RFI is frivolous (or unwarranted or whatever) is if the information needed is readily determined by a review of the contract documents.
A friend uses a section for RFI’s which explains the requirements of an RFI- the GC must have reviewd the documents first, etc., and the form on which an RFI must be submitted upon, with the killer paragraph at the bottom summarized as follows:
If the Architect can identify where the information is clearly shown in the Documents the Owner will deduct $ XXX from the contract sum to reimburse the Architect.
friv’o-lous, adj. 1. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion. 2. characterized by lack of seriousness or sense: frivolous conduct. 3. (of a person) given to trifling or undue levity… (Webster’s New Universal Unabridged Dictionary, Barnes & Noble, 1992)
(“Frivolous lawsuit” is a common term. Does Black’s Law Dictionary define it…?)
One way to ensure that the nickle-and-diming game will persist is to deal with “Requests for Information.” Under AIA A201 - General Conditions, the Architect is responsible for interpreting the contract documents. This is not the same as providing additional information. In fact, by providing additional information, a “change” condition is created. “If I had known that, then my bid would have been different.” That feeds the claim process.
Make RFI mean “Request for Interpretation.” If additional or different information is needed, then utilize the vehicles built into the contract documents: Architect’s Supplemental Instructions, Construction Change Directives and Change Orders.
All these have been integrated into the AIA contract documents. When some other form of documents is used — such as CM-produced or agency-produced General Conditions with RFI = Request for Information — then the abuses will persist.
Of course, the most effective way of solving the problem is not to make mistakes but that requires time for checking and cross-checking the documents before bidding, applying sufficient time to the production process and having knowledgeable and careful people prepare the documents.
Do well-prepared construction specifications help to avoid or resolve these “frivolous” claims?
Wikipedia free encyclopedia defines frivolous lawsuit as:
“A lawsuit is termed frivolous if it is brought in spite of the fact that both the plaintiff and his lawyer knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying justification in fact based upon the lawyer’s due diligence investigation of the case before filing (i.e. the well known U.S. Federal Rule 11). Since it wastes the court’s and the other people’s time, resources and legal fees, it may result in sanctions being levied by the court upon the party or the lawyer who brings the action.”
And, to answer John, I don’t believe that well-prepared construction specifications help to avoid or resolve “frivolous” claims. We had a project where the CM was bound and determined to inundate us with paperwork no matter how clearly the requirements were shown or written about. I’m going to review our current RFI wording with our project architects and project managers to see if something like Robin’s wording can be added.
Regener is right. “Request for Interpretation” is the correct term. This leaves room for truly missing information to be supplied: information, the lack of which impedes the contractor’s progress. It also invokes AIA A201 4.2.11,12.
No architect should ever bill the owner’s contractor. Instead, bill the owner, but ONLY after reaching agreement (with the owner’s PERSON- in-charge. preferably backed with a memo) about backcharging for frivolous RFIs, volunteered substitution requests without good reason, and unspecified or design-changing shop drawing submittals. (Harder to do on public work than private.)
Don’t try to DEFINE frivolous. You will be proved wrong. Simply describe what you mean. The arch-frivolity: Asking for information that is in the contract documents.
The bill you send the owner for him to deduct from the contractor’s next payment should be for the number of minutes it took for you to look up the info and document its location. One such bill may well do it.
Best defense for the design team - take the time to coordinate the documents, find the glitches and remove them prior to bidding.
Also see the good treatment of RFIs in CSI’s Project Resource Manual, 7.8.1.2, starting on page 7.101.
Frivolous RFIs are not mentioned, but good practice is - supplemented by an RFI form. By including the mandatory RFI form up front under Contract Forms, the bidder is warned that ‘interpretation’ is the purpose of each RFI, not casual information (like “What day of the week is it?”).
The PRM adds to the subject of modifying the contract by interpretation using an RFI thus, “Modifications of the contract documents affecting the contract sum or time should not be prepared as a minor change in the work.” True, but more is implied: One should be sure to collect all the RFI responses that affect dollars or time under a Change Order or CCD from time to time.
Also, the PRM recommends that RFI issues be resolved at field meetings where possible - and the interpretations entered in the minutes. Says the PRM, “Issues addressed in meetings are usually resolved quickly, whereas writing and responding to RFIs is time consuming.” Good advice.
Black’s Law Dictionary, 2nd Pocket Edition 2001:
frivolous, adj. Lacking a legal basis or legal merit; not serious; not reasonably purposeful.
frivolous suit: a lawsuit having no legal basis, often filed to harass or extort money from the defendant.