Well, I recall eating a Change Order because our drawings only showed three sides of some exterior columns clad in GFRC. We had to pay to get the fourth side after the question was asked by RFI.
As I recall we showed the row of columns in elevation from the front view, and a view of the backsides in an an outward looking elevation. Various other Sections covered one side elevation here and there. But we came up short with one side wall per column.
Technical terms to describe their position include poppycock and balderdash, but they held firm.
Well, the lesson I am getting from this is to pay attention to the details and don’t take any document or portion of the project manual lightly, the table of contents included.
How about a separate category for Change Orders or something to that affect, I really appreciate Steven Bruneel’s post, its about time Architect’s banned together to offer solutions to the onslaught of contractor tactics to line their pockets at our expense. I remember a book that was published entitled the Contractor’s Guide to Change Orders that included a chapter on how to find errors in Architect’s drawings and specifications and exploit them.
For years local CSI chapters have been offering classes about legal implications of Contract Documents, including the Agreement and A201. It seems like mostly Contractors and spec writers show up. Contractors understand the power of the Contract Documents and use it as a stick when dealing with Architects who haven’t even read the specs.
As long as Architects don’t bother to read the specs for their projects or show up and be educated they will continue to have their collective tails handed to them. It’s not like the opportunities aren’t there to learn. Often they won’t listen to those who have taken the time to learn where the trap doors are. I’ll never give up trying, but it’s a rare pleasure finding people in charge who are receptive. It’s the folks in the field who have to live with this that understand and agree. That is one good thing about my new job, most of the folks I’m working under get it and want to get the word out to everyone.
so, which governs…section number or section title. If i have XX XX XX - Widgets on the TOC and XX XX XY - Widgets on the spec section header, is that grounds for the contractor to say widgets are not part of the contract? there is still an implied covenant of good faith and fair dealing in contracts. Although unethical and greedy contractors may argue they should get a change order for the widgets, i would suspect a court would find otherwise. The more this conversation progresses, the happier i am i avoid public work!
Public work isn’t so bad. I really enjoy being able to help design buildings on the campus of my Alma Mater.
I’ve had plenty of private clients with attorneys who didn’t know the first thing about construction law and it showed in their edits to my draft of the supplementary conditions.
Ten years ago at the CSI Convention in Chicago I attended a session on How the Courts interpret specs, or something like that. The two main takeaways I had from that session were that the courts will typically look at the documents as a whole and determine what is reasonable inferable from them. And, that a list of precedence had never been the basis of an award in a construction claim.
I believe that any good construction attorney would be able to convince a court that mis-match section number and/or title was not grounds for a change order. In the original post, the contractor had to cover the cost of something for the section listed, and it would be reasonable to interpret that it was the section with a similar number/title. Maybe I should have gone to law school and defended all these A/E’s who don’t read their own docs…
Curt: In my private projects, 99% involve contractors that wouldn’t attempt a change order based on minor typo’s. On public projects, where it is a “lowest bid” situation, i suspect there is more room for this type of suspect behavior
Robin - True. I guess we are lucky here in Wisconsin because, even though there are a few GC’s I’d rather not have on a low bid job, most of them (and the subs) are well above those in other areas of the country as far as ethics are concerned. I’ve worked on the GC side as well and can speak from experience.
In Andrew Civitello’s “Contractors Guide to Change Orders”, Chapter 6 (Prospecting for Change Orders), there is a Change Order Research Checklist. Item 1 under Specifications is: “Does a Specification Section Exist?” and then goes into detail on how to extract a pound of flesh from the Owner for deficient specifications. This book makes me feel dirty just reading it.
Nathan, that’s the book, I wish there was a 3rd edition, the 2nd edition was published in 2002. I bought both editions and both editions have disappeared over the years, probably lent to fellow architects and never returned. I used to recommend this book to my clients, but architects don’t read specs, so of course those who bought the book, never read them. When I received the 2nd edition, I recall incorporating much of Mr Civitello’s checklist items in my work and there was a time I was going to co author a similar book from the architect’s viewpoint, but than reality set in.
Mr Civitello has a website to promote CPM, Civitello Project Management, but its more of a marketing site than a share information site.
Curt, maybe its all the cheese? I will tell you that I’ve had great experiences with Contractors born and raised as Cheeseheads, I recall when I worked on my first roof job, the foreman was from Wisconsin, I recall having the best experience working with him and several members of the Contractor’s team were from Wisconsin. That was also the job where I fell off the roof (Omni Hotel Mall) onto concrete and wound up with a dislocated shoulder (dislocation No. 2). These guys stabilized my shoulder gave me a pint of bourbon and helped carry me down the stairs. Perhaps this is why I eat cheese everyday, or maybe its because I like cheese…boy has this post got off target, its been a long day, I apologize.
You might be right that the argument wouldn’t hold up in court with a reasonable judge … but that assumes the argument will get to court. That’s not going to happen. The contractor really only has to argue long enough for the architect to concede something. If that doesn’t work, then they just have to convince the owner that the architect made a mistake and that the architect’s ‘unwillingness to work as a team to resolve the issue’ is going to delay the schedule, etc. Contractor wins. Lawyers probably never even get involved.
What I have heard through the years is that although minor typo and name errors will not succeed in court as the basis of a claim, their existence in the documents casts the suspicion that everything else in your documents may be equally full of errors. In other words, the bloodhounds smell blood.
Lawyers earn the keep with words, so they are very cognizant about what errors in text can do. For an experiment you could give a lawyer two versions of the same spec. One is factually perfect but full of innocent typos. The other has no typos but you have replaced all the manufacturer names and product names with the names of your pets, all sizes and dimensions have been randomly selected, as are the numbers in any listed ASTM, UL or other reference standard. You know which one they would say to use.
Regarding Public Work I have been told by the Project Manager from a county GSA that they definitely preferred perfect clean documents over what ever resulted after the contract closed in the form of design or construction quality.
The same GSA in a document review found that on the very last page of the Specification on commissioning of the Security system, which was a sample commissioning form intended to be filled out by hand, that the Security consultant had noted “fill out form with waterproof Sharpy pen”. We were informed that the project could not move forward unless we provided 3 equal pens. Also, I remember it was the very last page of the spec book because the was prepared using MF 1997 and the Security consultant used the mythical DIV 17.
My favorite Public Work moment was in a meeting for a huge county hospital in San Francisco. All hospitals in California are reviewed by the state agency OSHPD. A newly minted City project manager saw we were using OSHPD to “get” a building permit, and the building permit was very expensive. So they requested that we provide two other equal AHJ’s so that the bid could be competitive.
It’s interesting that this should be an issue in a group of people who regularly proclaim the four Cs, and insist the information they get from others is accurate and error-free. If you’ll accept “just a typo” here, why not in the yield strength of your structural steel? If it isn’t right, it’s wrong.
Sheldon - I know you know the difference in potential consequences from incorrect yield strength versus a mis-numbering on a TOC. Fortunately, Construction Documents are not required by law to be PERFECT, but if your contract with your clients raises your standard of care to perfection, then, that is your choice.
Anon - maybe i should just be very grateful i haven’t run across a shady contractor that would try to low-bid a job by excluding something clearly listed on the TOC and included in the project manual on the basis of a typo. I am sure they exist, but, i have been fortunate in my 24+ years doing this.
Everyone else…assuming you are all mere mortals and your documents may have the occasional typo or other minor error that doesn’t affect cost, or health, safety welfare…any other input on whether ethical contractors really want to track these type of changes through ASI’s? Do you issue the change as a narrative, or with a track changed document?
It’s been the decision in the last 3 firms I’ve worked for to reissue documents with the changes shown. (We’ve been using strike-through and underline). Our reasoning has been that the contractor will toss out the old and insert the new, rather than trying to keep track of the changes.
The narrative indicates what documents have changed.
For privately bid projects with reasonable parties, I think a short narrative memo stating that Section xx xx xx is really Section xx xx xy should be more than sufficient. The GC with common sense has already redmarked her documents.
When I revise sections, I sometimes fix random typos and spacing without telling anyone on these type of projects.