Robin:
Ask the the Architect (your client) to ask the Owner if his lawyer is a CCS.
One of the primary purposes of Division 01 is not only to spell out the administrative and procedural requirements that govern the other Divisions, but also to keep the Supplementary Conditions from being an additional 80 - 100 pages longer. Absent a 200-page General and Supplementary Conditions, Division 01 becomes an essential and integral part of the Contract Documents.
Sounds pretty obvious, I know, but this, too, needs to be considered:
In privately negotiated work especially with a repeat contractor, it is not all that uncommon for owners to be a little loose with the rules of the game. That is entirely their prerogative. Sure there are risks with that approach, but the owner is apparently willing to tolerate those risks, presumably for some trade-off (maintaining the relationship, getting a better price, whatever). And the architect who takes on such a project (negotiated / private / condominiums) likewise knows there are risks and has every opportunity to walk away, dont they?
Nonetheless, Architect takes on the project, and the deletion of Division 01 has apparently raised a red flag, to the point where they have gone through the process of engaging the services of legal counsel regarding this matter, and have received advice that - in all likelihood, TOOK INTO ACCOUNT ALL OTHER FACTORS and seems to provide a comfort level for those who are signing and sealing the construction documents and will be assuming the liability there for.
The services of a Specifications Consultant were engaged to prepare a finite set of documents. The Architect / client determines the scope of those services for which they are engaging, and pretty much has veto power to anything that might subsequently be determined to be needed or added. And they have an attorneys ruling to back them up. Also as part of that service, was the Consultant given a copy of the proposed Owner-Contractor Agreement, the proposed General Conditions, and the proposed Supplementary Conditions for review and coordination? For that matter, was the Architect and their attorney? (Basically, what is it about those Documents that gives the Consultant concern that Division 01 specifications are not included? One must establish a strong basis for their argument, in order for their argument to carry any weight.)
If they were never given the opportunity to review the front-end documents, then can they truly say there is a gap? Indeed, there MAY be a gap, but without having seen or reviewed the documents first hand, one cannot really assert for sure. They just don’t have all the information to render such an opinion. And architects are not prone to giving credibility to those who cry the sky is falling! From my past experience, the best tool to show an architect is a side-by-side comparison of the front end and the proposed Division 01 sections. Educate them. Show them all the information that may be missing. Maybe the architect does not fully comprehend the contents, or their importance. But once they are brought up to speed, they are then better able to evaluate the potential for risk, consider consequences, respond to their attorney, consult with their client, etc. Presto the specifications consultant has probably just created an ally that can now speak the same language!
The consultant, thus having acted in a professional manner and pointing out a potential gap in the documents, advises their client accordingly (in writing, of course). The client acknowledges the gap, says it is indeed intentional, says they have consulted an attorney, and the attorney’s ruling is that it is okay to leave out the documents. In my book, thats pretty much the end of the discussion. The architect has been informed by the best advice available, from both their attorney and their expert consultant. The architect has proceeded accordingly, and any potential consequences that may be incurred are those of the architect and the Owner. If they are united in steering the ship, they should likewise be united in going down with it, when the condominium HOA iceberg hits it. The specifications consultant safely watches from ashore, saddened to watch that which was so avoidable.
What architects and some owners don’t understand, is that Division 01 is the bridge between the Owner’s Contract (Agreement and Conditions of the Contract) and the Architect’s technical specifications.
It is to everyone’s benefit to spell out the specifics of how the contract will be administered. For example, any of the following could happen if no Division 01 is prepared:
- Contractor: The Architect or Owner can make excessive demands regarding submittals (number of copies, days to review, etc.)
- Architect: The Contractor can submit anything that is required in any form that he wants.
- Owner: Non-specific requirements in the Conditions are left to interpretation by everyone, leading to possible claims.
An Owner who provides Division 01 sections for the Architect to incorporate into the project manual, especially if the Architect can’t modify them, is only constraining the Architect’s ability to administer the Contract; thereby, transferring some of the risk from the Architect to the Owner.
I’m with John Bunzick on this one. I’ve found that a lot of Owners want to delete Division 1 – for whatever their reason. usually these are projects with the same owner, the same contractor, comparable projects (for instance: the 6th and 7th projects on a campus) and a lot of examples to demonstrate what is expected. if the owner has done a lot of construction projects before, they qualify as “sophisticated” owners and most likely have attorneys who have either advised them on this matter … or not. So, I tended to issue an abbreviated Division 1 (3 or 4 sections) and simply explain that our liability requires that we issue those sections as part of our administrative responsibility. I’ve never had an owner refuse those sections when incorporated in that manner. I think instead of saying “I’m doing this for YOUR own good”, the easier approach is “I’m including this because its necessary for my services”.
when you’re consulting and your client is the architect, not the owner, the approach would be the same – appeal to the architect’s sense of how they do their job. obviously if they are not doing construction administration, then their issues will be somewhat different.
The conditions of the contract describe basic responsibilities and relationships between the parties to the construction contract - usually the owner and the contractor, the design professional coming into play as an agent of the owner. Division 01 sections, just like the rest of the specifications, are instructions to the contractor, explaining how things are to be done. The difference between the two sets of documents is clear in the way they are written: the conditions are written from the perspective of an entity outside the contract, in passive mode, while specifications should be written as if the author were speaking in person to the contractor. I use this explanation when teaching certification classes; it often makes the difference in understanding how the documents are used.
Many owners - especially government agencies - do not understand the basic rules of organization and specifying that are necessary to eliminate errors caused by misplaced or repeated information. Examples are endless: instructions to bidders in the advertisement, specifications in the conditions, conditions in the advertisement and instructions, lengthy legalese in place of simple statements, and so on.
Owners or construction managers who want to use their own front ends appear to be unaware of the problem they create for specifiers, whose master specifications are written with the assumption that important information is properly addressed in specific locations. When dealing with owners or CMs who want to eliminate Division 01 or use their own, or use their own brand of general conditions, specifiers must make it clear that additional work will be required to ensure coordination of the specifications with the unfamiliar documents, possibly by adding into each specification section many requirements that should be specified in Division 01.
I recommend showing folks PRM Fig. 5.6-A Division 01 Relationship to Other Documents (Page 5.40 of the PRM)
Two things from my stand point, first I bet the late Ben Greenwood, FCSI, who is considered the father of Division 1, is probably turning over in his grave, and second being a Industry member means no division 1 for submittals so it is “nothing beats quality like a cheaper price”. Just something to consider!