Electronic drawings are NOT contract documents!

Archive of Older Topics Archive - Specifications Discussions #2
1

Our contractor has been bugging me to send his surveyor an electronic copy (CAD file) of our project site. So I finally did.

Well as you can imagine there was a problem with the electronic drawing file. The 0,0 point was off and the surveyor laid out the building incorrectly. Luckily an eagle-eyed superintendent noticed something askew (no pun) and notified us. The super also stopped the concrete truck from pouring the elevator pit footings and walls.

If the surveyor had used the paper BID/CONTRACT DOCUMENTS everything would have been fine. If the surveyor even looked at the paper drawings he/she would have caught the mistake.

Now the contractor wants a change order for regrading, relocating the site utilites, moving forms and rebar, etc. (Imagine the change order if he had poured the footings and slab to the whole building.)

We say no way. Our Electronic Document Request spec section and form is littered with more disclaimers than a roofing warranty. We specifically say to use the electronic files at your own risk. When in doubt refer to the BID DOCUMENTS.

Your thoughts, please.

2

I absolutely agree. As a construction administrator, I frequently run into requests for our CAD files. I have worked for very large firms and very small firms, none of which had a very cohesive approach to the matter.

There is a great deal of indignity thrust out by owners, contractors and construction managers when I put up any kind of resistance to issuing our CAD files. These files are instruments of service. We get paid to produce them for an intended purpose. They are not open source documents as some contractors seem to think.

Frequently, in the B141 or equivalent, there is a stipulation that the architect will provide the Owner with the CAD files. But what is not often defined is when. Generally, it is assumed contractually that the CAD files be delivered at the end of the project, as a form of Record Documents (for facility use, or whathaveyou).

I am increasingly coming across the need to deliver these files at the beginning of construction. In addition to the dimensional challenges you mentioned, there is also the ever moving target of completed drawings. Other than hard bid Public design-bid-build projects (remember those?), most drawings are continually evolving even as construction begins.

I have no moral reason not to provide these files. Clearly, it is in the Clients best interests for the contractor to receive and use the most accurate and direction information they can, including my CAD files. However, I have fiscal reasons for being reluctant to do so.

It takes time! I need a draftsmen to go into each sheet file, strip out the titleblock and the annotation layers, merge the X-refs, and so forth. Who compensates me for that time? Some of my projects have 400 and 500 sheets. This is a major effort. What happens when the next Issuance of drawings comes out? Do I need to expend this effort all over again?

No! Not without compensation. I generally charge a fee for each sheet file requested. That fee is paid by the contactor direct to my office. Often times, the contractor will ask for every sheet. I total up the hundreds of sheets, and send them a bill. Then we usually see the request whittle it down to a few key floor plans, and often, the electrical or mechanical drawings have our architectural backgrounds in them anyway, so we limit the request for files even further, economically.

The hard part is educating the client and contractor that I am not charging them for the contractually demanded files, but only for the effort it takes to prepare them for their use.

3

We have been burned in the past by giving out CAD files. This is why our Electronic Document Request spec section has so many disclaimers. (I am almost embarrassed to put it in the project manual. It looks like it has been written by an attorney…and it was.)

Sometimes, believe it or not, we “force” a dimension on our drawings. That is we disable the automatic dimensioning and type in the dimension that we want. Back before fast plotters we would erase and write in the dimension that we wanted. Hopefully someone would go back and correct the CAD file.

Anyhow the Contractor is responsible for bidding on the paper BID DOCUMENTS. Nothing more and nothing less.

In my situation I am tempted to tell the contractor that the CAD file shows a complete football stadium/grandstand in the field and that he is too provide it. I know his response will be that he only bid on what was shown on the paper BID DOCUMENTS. Bingo!

Upon further explanation from my PM it is VERY obvious that the surveyor did not look at the paper CDs. Sheet C3.0 is called Horizontal Control and Paving Plan. And guess what? It has DIMENSIONS! And CORRECT DIMENSIONS!

On the next project I am very tempted to say NO to a request for electronic files. As you said, I am not contractually obligated to provide any but the…you guessed it…BID DOCUMENTS!

4

David,
Where in Masterformat 2004 would a “Electronic Document Request” spec section be located?
I would think division 1 but did not find it under that name.

5

A contract that was enforceable had to be in writing: there are exceptions, but for construction contracts, it is true. Over the last 10 years, the courts have been struggling with what constitutes “writings” in an electronic age. One can now “sign” contracts electronically over the internet, and many state laws permit the electronic application of the professional designers’ seals and signatures to digital files.

However, I am unaware of any court case in which digital media were used as “contract documents.” They are extremely useful reference documents, and I am not sure that design professional should put unreasonable roadblocks in the way of construction people wanting to make use of digital construction documents.

This goes to the very heart of what the Drawings and Specifications are and what they are not. If CAD files express design intent which the contractor is supposed to use in getting a physical artifact built, then it should be expected that as “expressions of intent”, they are not necessarly complete and sufficient in and of themselves for building construction. This is not the way, in general, that construction personnel approach them, nor is it really compatible with the implicit expectations that CAD/D files bring with them.

CAD/D invites more detail and precision that may be necessary. This permits the definition of more complex forms by the Architect (a la Frank Gehry), and the Contractor is reasonable in having the expectation that the Architect share the digital media for such designs instead of having to work out all of this on his own, However, that very detail and precision can be subverted by “forcing” dimensions, by sloppy technique, and by “hand” corrections. In extreme cases, this can render the files useless even to the point of using as base sheets for consultants.

If you have “drawn” what you want, and you have a high confidence in the quality of your CD production, you should not feel too queasy about sharing these files. That being said, our office has disclaimers in our “Submittals Procedures” Section as well as fees for transmitting files to the Contractor to cover our costs. The disclaimers point out that these are not contract documents and that the Contractor is required to coordinate and update files where existing conditions (including construction in place) varies from the Drawings. The fee is sometimes paid without comment and sometimes contested. It will cause the Contractor to think about what he might really need and keep him from getting the whole ball of wax.

Do you want what you’ve drawn? Do you have confidence in what you have drawn? Then facilitate the contractor’s portion of a difficult process and let him use the files. Make him understand (and assume) the risks (often offset by greater rewards), and make him cover your costs. But, don’t hoard useful information.

P.S. David; (1) the Contractor is not due any extra time or money, and (2) I smell a great column.

6

“Electronic drawings are NOT contract documents!” is not always true.

At best, it is a misleading partial truth. It depends on the project. While paper may still be the most common medium, for an increasing number of projects that sweeping statement is downright false.

For example, some government agencies (such as the Corps of Engineers) routinely issue bidding documents in electronic format ONLY, on CD, and have been doing this for some time, at least for the last year or two. Bid sets consist of PDF files (for specs and other written documents) and CALS files (for drawings). These read-only formats can be viewed on-screen, and bidders can print their own hardcopy if they find that more convenient.

7

In response to Shedrick’s question, such forms do not need a section number, because they are not sections themselves, but simply an attachment to a section; and the forms are referred to in the relevant sections.

We typically include Electronic Request Forms after our Division 1 section for Coordination Drawings. Similarly, a substitution request form could be included after the Substitution Procedures section.

8

While I understand what Mr. Woodburn is saying, I must point out that Bidding Documents are not Contract Documents and that there is a difference between a contract and an enforceable contract. Mr. X enters into an oral agreement to have Mr. Y construct a vehicle shelter a fee of $10,000 plus cost of construction. There is a valid contract (meeting of the minds, consideration, etc.); however, it is not enforceable because oral agreements for this magnitude of consideration are not enforceable in most jurisdictions.

Is the Corps refering to electronic drawings in its construction agreement, or is the design consultant still required to seal and sign the Drawings for incorporation into the Contract Documents?

I must also add that in such environments, design firms must get more serious about CAD/D production ensuring that people are not subverting the quality of the graphic information.

9

The Contract Documents are a subset of the Bidding Documents, which are essentially the Contract Documents, plus Bidding Requirements. Even if record paper copies are made to be attached to the contract and stored in a vault or filing cabinet, those typically aren’t the working copies actually “used” for bidding, layout on site or any other purpose. Any such use could imperil their archive status.

As I understand it, the so-called “Statute of Fraud” (actually a legal principle grounded in English common law) requires that, to be enforceable, all agreements regarding real property (which would include improvements to real property such as building construction) must be in writing. Hence, “An oral agreement is not worth the paper it’s written on.”

In the case of the Corps’ documents, the electronic versions ARE signed and sealed, since they are the Contract Documents. (To the best of my knowledge, the Bidding Requirements, prepared by the Corps, are not.)

In today’s environment, paper documents are almost always simply plots or printouts of digital files. If the paper version doesn’t match its electronic source perfectly, there may be a problem. The two versions should coincide exactly, and any electronic files issued for such purposes should probably be write-protected and perhaps also password-protected for security by whatever means are available. Other than that, we should exercise the same care for the quality of graphic (and verbal) information when using computers that we would with traditional production tools.

10

The term “Electronic files” itself needs to be defined.

PDF, DWF, PLT, JPG or other “static” uneditable formats are not really electronic files as we are discussing them.

It is one thing to issue a CD of autocad PLT files to a contractor. It is quite another to give them live DWG files.

11

Robert,

I guess I should have said that “Our CAD files are not contract documents.” With the proliferation of plan centers online there is an abundance of “electronic documents” floating around in cyberspace.

Peter,

Our CAD files are mere tools not end products. They can have junk in them such as lines on wrong layers or colors/line weights. Sometimes we have different schemes or drawing aide guidelines on different layers that are “frozen”. Sometimes it is just plain junk for example when you move a line and it accidentally ends up “off the page”.

Therefore these drawings are never intended to be used as final products and should not be used as such.

12

So, not all electronic files are “electronic files.” Perhaps the distinction needs to be standardized through the industry in some way.

Does the National Cad Standard address this? Is there a way that certain layers (or copies thereof, “cleaned up”) could be reserved for possible future issuance “live,” under an appropriate end-user license agreement, and payment for re-use, in shop drawings or building management? (As opposed to “static,” uneditable project record documents)?

13

one way to make "exact’ electronic files is to create pdf files which will show exactly all the items you want, without any extraneous layers or items showing up. this will also protect the integrity of the cad files and they cannot be changed by others

14

Mitch,

I agree. We make a PDF of our Word documents when we send them out. The problem is that contractors want an DWG file so that they can use the information.

BTW, we also have the same issues with conformed sets. We have made mistakes and had it used against us.

I have just changed the password to our project FTP site. If the contractor wants our electronic documents…too bad. Fool me once…

15

David: you can also make pdf files of dwg files…ACROPLOT

16

Mitch: We’re screwed.

17

Not having done an Electronic Request spec section, and with respect to furnishing these electronic files, are you typically identifying specifically to whom the files will be made available, or the types of files that will be made available during the bid phase?

My concern, with respect to the owner’s available funds, is the fact that the sub/contractor probably has a cost in his bid for the work (whether for site layout, shop drawing production, etc.), and he just might be hoping to pocket some extra money if s/he can obtain these electronic files and not have to expend the labor to layout or draw everything from scratch. Depending on the project, this could accumulate to a rather hefty amount … surveyors, fire sprinkler contractors, precast, steel, etc.

18

Tom,

Actually we have not identified what specific documents would be made available. That’s a good idea. Our thought has been that the contractor would request only what he/she needed. But we have already had a fight with the GC. He wants every drawing to be avaiable on the FTP site.

I tell you it is more hassle than it is worth and as we found out it can be used against us. I encourage our office not to make these documents available to the contractor.

19

This is a problem the profession needs to solve. It is clearly in the owner’s interest if, as Tom Peck explains, costs can be saved by subs using the contract drawings. If the CAD drawings are indicated to be available, some subs may lower their prices to avoid these added costs. Distribution of construction documents in a “purer” form than simply PDFs (just a big photocopy, really) is not only inevitable, it is necessary. Redrawing of the CDs for use by contractors is just a big waste of time. This is one more area where use of information technology can increase the productivity of building design, construction and operation.

One response by the profession to this issue is to give consideration during production as to how an electronic version will be prepared. Might this take more fee? Possibly. Are there legal issues to work out? Probably. But it is not going away.

20

David,
Our CM (KPFF) would have sided with the contractor on your dispute. It is extremely important to not ‘aid’ the contractor with respect to the physical location of the building or the site improvements. In Washington we have sometimes three different (and contradictory) coordinate systems on a given site. Even if he pitches a fit, don’t give it to him.

Why? Because you should be requiring that the contractor establish control on the project (in Division 01). That means control in three dimensions; on the appropriate datum; legally defensible. Your CAD drawing does not and cannot do that.

Architects should stay out of that business. Rodney Dangerfield: “Wanna earn 14 bucks the hard way?”