We prepared specifications for a condominium project based on standard CSI 3part, with masterpsec as our base spec. After completing the specs and prior to start of construction the developer has retained a Constr Defect Mitigation Service whose number one recommendation is to delete the specs in their entirety - Arch has refused so their 2nd recommendation is that we the specwriter delete all reference in the specifications to standards, i.e.ASTM, ANSI, etc. The contention of the Defect Mitigation consultant is that the standards cited are impossible to meet for work in Florida due to our unique climate, further they contend that the GC and subs do not have the standards available to them on the job site so how can they perform their services based on these standards. The developer will grant us a hold harmless when we agree to rewrite the specs (at an agreed upon additional service) however we are uncomfortable with the thought of reinventing the wheel esp. on a condominium project - a litigation nightmare to begin with. Any experienced specwriters have any thoughts, recommendations, guidance - this is aprivate sector project, so the options are limited.
There’s an easy solution to one contention: Include a provision in each section that the Contractor keep one copy of each reference standard on the site at all times for the use of all involved, and require that this standards library be turned over to the Owner at the end of the job along with other project record documents. The GSA has used a similar requirement in the past, at least for some work (for example, an embassy).
One has to marvel at the CDM Service’s chutzpa, though…it’s a truly radical approach to the elimination of defects, in the sense that it strikes at the very root of the problem: Without any standards, how could there even BE any defects?
We once had a developer who told us to delete the reinforcing mesh in the floor slabs for a 20-story condo. Developers are full of Luney-Tunes. Sounds like you should write a line in the documents to delete the Constr. Defect Mitigation Service.
Just when I think I have heard it all, something comes along to amaze me.
You realize that many of those same standards referenced in Masterspec are also referenced in the building code. Are they going to suggest you not to follow that? At a minimum, I would want to keep those standards in the specs to demonstrate compliance with the code.
The whole idea of using industry-recognized standards is to make specs consistent from job to job and limit the words required to ensure the desired results. I would be worried about having subcontractors who don’t know their own industry’s standards.
If you proceed on this path, I hope you plan to read the standards you delete to know what you have taken out of your specs. Masterspec and other the master specification systems rely on those references and they generally don’t repeat all the useful criteria.
This also raises a “standard of care” issue that your E&O insurer might want to weigh in on. He won’t charge you to talk about it. He may help you figure out whether the “hold harmless” clause will protect you from the future building owners.
My own experience is that the standards have covered my backside on many occasions where there was a question about the quality of the work.
Once again, I recall what one of my former bosses would say in a moment of frustration - “If I had it to do all over again, I’d sell shoes.”
IIRC, MasterSpec’s Division 1 either requires the Contractor to have copies of the applicable standards on site, or request copies of same from the Architect. With so many standards available on the Web now, there’s just no excuse for not having these available on the job site.
Excellent point from Mr. Howard re the E&O insurance issue. Some carriers offer A/E’s a discount on their insurance for using a commercially available guide specification system like MasterSpec; I don’t think they’d go for what this so-called “Service” is suggesting. If it were me, I’d flat tell them I was not deleting the specs because my insurance people would not allow it.
I did public projects for 5 years, with some of the dumbest so-called “Construction Managers” I ever came across, and I thought I had heard it all, but this takes the prize.
The Owners advisor understands well that you will have no construction claims if you do not enforce the contract. On the other hand this action creates a situation where you will be unable to establish that you followed the standard of care when the home owners association sues the Architect and you.
I recommend you discuss this with your insurance carrier and your attorney and if the Owner insists, consider walking away from this project.
Are you sure that the Constr Defect Mitigation Service is not a wholly owned subsidiary of a law firm?
Lawyers are always involved…I am meeting with the head of this Constr Defect Mitigation service on Friday to discuss their concerns regarding the specifications - this gentleman is a former chief building official in S. Florida, so that should be interesting…I am certainly open to their recommendations if it helps the architect avoid litigation, but I am not about to jeopardize the integrity of the specifications nor my reputation just to apease the Developer (who on this project is also the Architect).
Another alternative is to rewrite the specification as a straight proprietary document. List 1, 2 or 3 acceptable products/systems and than accept no substitutions. The inclusion of reference standards are primarily tools used to enforce the contractor to provide the products/systems you want to get anyway.
As previously stated, one can not get away from code imposed standards. Just be sure that your project manual clearly states that the project must comply with all applicable codes and regulations [most general conditions cover this].
By keeping a tight rein on who your mfrs are, and maybe even who the installers are, the project should turn out OK.
I’d go back and look at what your design services agreement says about the nature of your professional services and deliverables. There is a point at which the concern should be raised with your legal counsel that this outside owner’s consultant is interfering with your firm’s client relationship and your ability to deliver your contracted services.
Obviously, the consultant’s leadership is aware of the architect’s standard of practice and the implications of their recommendations. It’s hard to understand why a knowledgeable owner’s consultant would make such sweeping recommendations with such potential for causing the owner harm.
As a practical matter, converting all of the requirements to “proprietary” specs may be impractical. Would you really want to restrict the use of cement or reinforcing steel to a single manufacturer? How about clear float (annealed or tempered) glass? What about sand (for concrete or mortar)? Or steel tube or schedule 40 pipe? Or wood blocking (maybe the treatment)?
This is one of those ideas that is so outlandish and absurd that it is difficult to argue against. Since a lot of contractors don’t have specs on the jobsite (even when it is clearly required), that should be reason to do without them.
I would ask this “consultant” whether he is willing to take on the E&O liability himself, then have your carrier draft up a document for him to sign. If he is willing to sign it, you should see about having him committed.
In thinking further about this situation, I would offer the observation that most (certainly not all) standards cover materials and fabrication, stuff that happens before the product arrives at the jobsite. These can be reviewed during the submittal phase.
There are, however, very important standards that apply to erection/application/installation activities (see ASTMs for metal framing and suspended ceiling work and TCAs/ANSIs for tiling) as well as field quality control (concrete testing and earthwork compaction). I refuse to believe that anyone who has anything to do with placing concrete is totally unfamiliar with slump tests and taking concrete cylinders. And if the tiling subcontractor is unfamiliar with TCA standards, he should be thrown off the jobsite.
I would love to have a report on your meeting.
JP - wow what a meeting, still trying to figure out myself what is going on - basically the Developer is in love with the CDMS while the architect and specwriter are not - guess who wins here - so we first went thru each spec section of the project and put together a matrix of standards used - this way we can determine quickly what is now in job and how we are going to appease the Developer. The CDMS would like us to do the following: Delete all Div 1 sections, delete any contractual verbage in Part 1; and delete all references to standards in Part 3. They claim that the contract between Owner and Contractor is not discoverable and therefore they can hide all the contractual verbage from the specs there - this they say is based on their years of experience with similar litigation (i.e. high rise condominium work). The attorney we have spoken to says this is preposterous, that the contract is discoverable and forms the basis for establishing the contractual relationship between parts during the trial - well that said, Developer still wins, cause Architect is not willing to challenge the CDMS on this one.
As far as taking the standards out of part 3 this gets to be complicated, the CDMS would like us to rewrite each spec section by paraphasing the specific portions of the standard that apply to the spec section - paraphase - how to you paraphase the TCA Manual, or ASTM C926 for stucco, among too many others. We have suggested adding a requirement in submittals -if we are allowed to keep it in the section - for the submittal package to include the standards that the manuf recommends in their installation instructions - the parties are considering that option. Meanwhile my client, the Architect has asked us to draw up an additional services agreement with the estimated not to exceed upset fee - not an easy task.
What makes this even more crazy is that normally we would salivate at the chance to provide this much additional services and be paid for it - unfornately our track record on AS agreements has been that we always tend to under estimate our fee, and get stuck with providing more time in order to maintain our reputation - also fortunately we are extremely busy, so it is not like we have the time to do all this additional work, and finally, even if we do underestimate or we have to negotiate numbers, we are typically able to reuse the resulting work or morph it into other projects for other clients - here however, we took a poll of some of our clients, who in a nutshell think we are nuts and have no desire to reinvent the wheel. Let’s see, past two nights working on this mess, been to bed by 4am, up by 9am (get to sleep late cause our office is downstairs in our home) its gonna be alot more long nights until this is done - oh yes and the kicker is that the structural, MEP, waterproofing, and fenetstration sections have separate consultants who must do same and so far are resisting - and would like our guidance and input in revising their specs - its gonna be another long night. Did we mention client wants it in a week and we estimate so far at least three…more of this saga to come - keep coming with the suggestions as the dilemma continues.
JL:
Another thought:
Walk away (but respecfully). What harm is there in declining to make the requested changes, on the basis that the CDMS has no authority to dictate how the design documents are prepared? They are not the design professional of record, and have ZERO liability to assume if something goes wrong in the event the otherwise incorporated referenced standard would have saved the day or affected the outcome.
The Owner is always free to delete certain provisions by Change Order (in which case THEY would be assuming any liability). Sounds like they may be looking for a scapegoat.
You reference ASTM and ANSI standards. What about ACI (is there concrete work?), SMACNA and NRCA (is there roofing and flashing work?), BHMA (is there door hardware?), and GA (is there drywall?). And what about UL / FM (rated partitions, doors, firestopping, etc.)? NFPA (is the building sprinklered?)? The purpose of referencing the [referenced] standard is to avoid having to rewrite it verbatim in the specifications. And reference standards are mere MINIMUMS, not gold-plating. Is the Owner or CDMS suggesting or implying, by their request, that you are to now write all that verbiage into your specs?
Also remind the Owner that Condominium Associations are very adept at engaging attorneys to represent them and perfoming due diligence surveys to zealously seek out defects as a way of negotiating lower purchase prices for their property. So if you do revise the specs, and have some sort of waiver or release, please include a provision that imdemnifies you in the event faulty workmanship is traced back to a specification subsequently weakened by information deleted at the request / direction of the Owner or CDMS.
Good luck.
“The Contract Documents form the Contract for Construction (A201, 1.1.2).” They may think “they can hide all the contractual verbage from the specs there” (in the “Contract”), but in reality, it’s ALL the Contract. You can move, but you can’t hide, that contractual verbiage.
Run - don’t walk - away from this one…
Oh My goodness. Mr. Combs is correct. Quietly leave the room and never come back. These people are certifiable! I’m serious. Send a letter (reviewed by your attorney) outlining your very serious concerns and terminate the relationship. If I had to walk away from lots of money on this one I’d do it. In fact you may talk to your lawyer about breach of contract with the Owner (I’m not sure about this part). I think that they are asking you to do VERY BAD things.
If it’s just you doing the work, I’d give a proposal for 168 hours (seven 24-hour days) at 200 or 300 percent of your standard hourly rate. If they accept, you know their nuts.
What an interesting discussion! This makes the spec. forum worthwhile all by itself! Thank you, Colin, and thank you, Jerome, for posing the question and sharing your experiences with us.
In 20 plus years as a spec. consultant, I have been asked many times to do specs. for condos. I have always turned them down. Now I know why.
I would agree that writing specs for condominiums is sometimes a nightmare, but having written such specs for over a 100 condominium projects over the past 8 years, and not having been pulled into litigation on any of them - knock on wood - I must admit that the work has allowed our firm to grow and prosper - this is the first job where we have had to deal this this BS and probably will not be the last.
Unfortunately walking away from this job will piss off the Architect, my client, and may cost us dearly as we are preparing specs for the same firm for several other condo and hotel-condo projects - this client does pay their bills, are usually very respectful of our role and has provided us the opportunity to work on some challenging projects - however there is something to be said about maintaining ones sanity - so right now we are considering allowing the Division 1 and part one changes, as long as we receive a hold harmless from the architect and the architect is made privy to the contarct to ascertain that the verbage deleted from the specs has made its way into the contract for construction.
In regards to part 3, we do not want any part in this endeavor, the $$$ are not worth it so we are proposing that the specs be revised to rely on manufacturer’s written instructions in lieu of an explanation of installation and testing - for most of the critical items - moisture control, fenetrations, and cladding, the respective warrantees are tied to how the manufacturer wants the product installed anyway, so why not cop out and place the burden back on the manufacturer - not my style, but this is an unusual if not mashugana (yiddish for totally nuts) situation. Any one have any thoughts on my thoughts?
The “CDMS” (Certified Damage Magnification Specialist"?) should not be proving legal advice unless he is an attorney. It should also not be providing design advice (the specifications are part of the design) unless they are licensed/registered to practice in its particular discipline. I would really like to check this guy out. My suspicion is that he really does not have the credentials or the experience to make the recommendations he has made.
If your client is really one you want to keep, I would suggest having a meeting with him w/o the CDMS. You should be prepared and include your professional opinion about these recommendations. It is my view that the credentials of the CDMS to make such recommendations should be an item for discussion. I would also believe that you should discuss the liability (liability accepted by your client and by you) that may stem from accepting these recommendations. You may also want to pay for a written opinion from your attorney. You may want to urge him to discuss this with his attorney.
I have also been instructed in the past to put into the specs the substance of the requirements incorporated by reference. I have ignored this instruction. It creates lots more work, multiplies the liability (imagine that paragraph you are trying write at 11:00PM when you fail to include the word “not”), and is absurd on the face of it.
If your client is experienced, you may find that he is having some of the same thoughts you are.