Let’s say the specs. are changed to reflect the instructions of the CDMS: No Part 1, modified Part 3 to eliminate standards and weakly say someting about manufacturer’s recommendations or warranties or something. (What do you do about all the stuff that the manufacturer’s recommendations include which says someone else has to do, i.e. elevators, floor prep. for finishes, etc.?)
Now let’s fast forward to 2 years after the project is completed. The balcony railings are loose and the balcony traffic cover is leaking into some of the units. The leaks have caused extensive air conditioning damage. A claim is made by a third party owner, not the developer and not the builder, which goes to arbitration? litigation? whatever, and the specs. become part of the evidence. If another spec. consultant, say a highly reputed one, is asked to testify as to whether this document is “standard of care”, or the way he usually does it, or whatever. What will happen when he says his specs. contain all 3 parts, his specs contain details for installation of materials, coordination of work, etc?
The third party owner can sue anyone he wants to, and it seems to me it would be difficult for the architect, the developer, the spec. writer, or anyone to prove standard of care. The architect and developer could prove that “they made me do it”, (I presume you are documenting all conversations), which might help. But it looks like an invitation for disaster to me.
Has the CDMS presented any kind of case that is even plausible, i.e., backed up by evidence, case histories, etc., to support its radically unorthodox approach? What reasoning is this based on? If the CDMS were a lawyer, I might assume this is based on some hairbrained “legal theory” that he (I can’t imagine a woman proposing such a wild and reckless idea) wants to test in court…
The “standard of care” rules, and this seems to be…its extreme opposite.
Trying to convince the developer that he should be concerned about litigation in 10 years probably will not resonate. Typically the developer forms a seperate corporation to build each project and when he has sold the condos and gotten his money out he closes the corporation. Thus when the litigation occurs he has no liability exposure.
In addition if the Architect is not willing to walk maybe you do not want him as a client.
This whole deal is ludicrous. Are you sure youre not on Candid Camera? How can your client, the Architect, acquiesce to the deletion of all Division 1 sections? Hes not a party to the Contract for Construction established by the Contract Documents and cannot be bound by it. I assume he has a Contract with the Owner that contains obligations to perform work like CA Services? Without Division 1 sections, how can an Architect enforce his own contractual obligations?
Id be amazed if any Structural Engineer would agree to the deletion of applicable ACI, AWI, AISC, ASTM, and other standards. If they do, Id like to know who it is so I can be sure to not ever him them for our work.
Regarding the request to delete reference to all Standards, what happens when a manufacturer’s written recommendations include one or more of those “Standards” that you’re being asked to delete?
Candid Camera no, Twilight Zone yes!
Still waiting to hear what structural engineer will be willing to do - they have much more weight then we do - if they go along with this mushugana process - than maybe we will all be certifiable when we are done.
As of yet we are holding out for a miracle, but we would need to make a decision this week - so any other comments on our dilemma are welcome and needed so that we can complete out written response.
Wow-this is amazing! I have some questions/comments, but first, let me understand the relationship:
First, I take it you are the consulting specifier, not an in-house employee of the Architect-is that correct? Second, I think that the Architect and Structural Engineer should immediately consult their counsel and liability insurance providers, if they haven’t done so already. I also like the idea of the Architect meeting privately with the Owner without their architect attack dog-excuse me, the Consultant present. This may be the most effective way to resolve this.
In my opinion, this “Consultant” has interfered (or will, if the team agrees to their demands) so greatly with the A/E’s instrument of service that it could be argued these unlicensed persons are engaging in the practice of architecture, and a complaint should be filed with your state’s licensing board.
Has the Architect gotten a “second opinion” from another CM or Contractor who does peer review of documents? The “Consultant’s” response to another opinion could open the Owner’s eyes.
Finally, I know you hate to lose a client, but you may need to have a serious conversation with this Architect. If they agree to this, it may not be somebody you want to work for, as they are in effect agreeing to a devaluation of what you do.
BTW, I am not trying to hide by posting “anonymous”-I just started reading this and got so caught up in it I had to respond.
As a specifications consultant, with the architect as your client, what liability could you possibly have in providing specifications as directed to do so by your client? If your contract is with the architect, not the Owner, not the developer, you are responsible only to the architect.
I see no reason why you would have any objection to making the requested changes since you have no liability. It may be a really bad idea, but that isn’t your problem. Are you required to be a registered architect to prepare the specs? Are you required to stamp the specs for the project? Doubtful. It is the architect that assumes full liability for this.
If it makes you feel better, get a letter of indemnification from your client, make the changes, and sit back to see what happens next.
Well the plot thickens, during a conference call with Architect (my client), Structural Engineer, and myself, I advised that terminating our agreement was being considered - interesting Architect liked that idea, hmmmmm…waiting for PE to make a decision - they are big boys on the block, curious to see how they respond.
Anonymous
Part of the problem with going directly to the Owner is that on this project, the Architect is a major partner in the development and is indeed the Owner - ya think Oprah would be interested in this story…hmmm, maybe Morry?
Sorry, humor is the only thing keeping me going now - this dilemma is too absurd to deal with, not a drinking man, but before the end of this bizarre week, I may become one.
If your client (the architect) goes out of business, the hold harmless agreement won’t be of any value…
To me, it’s not a matter of who directed you to do it, being paid to do the work, or having a hold harmless agreement. Its just the wrong thing to do and I wouldn’t want any part of it.
I doubt your client would stop doing business with you because of it. If he did, you’re better off without him.
Anon
Bingo this is one of the reasons why we do all this condo work, however my problem is how this will effect my reputation - word travels fast in this business, and although making the changes with a hold harmless would seem to be a valid solution, it may not be the solution best for my firm or for me - decisions, decisions…
BTW - thanks for your responses and to all who have responded - I’ll be printing a copy, rereading them all, and formulating my written response tomorrow afternoon - still time for you last minute laggards to dive in with your opinions.
There is no way that I can add anything of substance to this discussion. It’s all been said: don’t do it. Whether or not you have liability, you will be named in the suit, and it will damage your reputation and cost you dearly. By virtue of your asking the original question, you admitted that you are uncomfortable with the idea. Follow your original instinct. It’s right.
Jerry,
We met at the SCIP meeting last week and you seem to be a sensible person. I agree with Lynn, go with your instinct, this is a bucket of hot coals that will burn everyone who hangs on to it. Let it go!
I agree with Lynn that there is nothing more to be added to this discussion except my vote for walking away!
I’m not sure where the concept of a Construction Defect Mitigation Service came from but let’s hope it dies a qick death and doesn’t gain a foothold as did Construction Mismanagers, I’m sorry, I meant Constructon Managers.
But then that’s a subject for another day!
Margaret
Must be someone impersonating me, unable to attend the SCIP meeting, although it was my intention to do so - just too damn busy to leave these days.
We have a ‘new’ building code in Florida effective July 1 and it seems everyone is trying to get their jobs submitted for permit prior to that date - I do forsee sunning on a beach somewhere or enjoying the company of family in July though, after the dust settles.
I do think that I am leaning toward just saying no, and take the termination clause in our agreement and see what happens. Could be an interesting week next week.
Hmmm, I wonder if my client is reading this - something to be said about posting anon.
I agree with most of you and would have walked from the project.
Whenever someone wants me to do something convoluted and complicated I get very suspicious. Especially if it has never been done before. What do they have up there sleeve?
What goes through my mind while reading this thread is that Jerome is being set up to to take a fall.
The only reasons I can see to eliminate industry wide accepted standards is if the products are not specified in the project or not applicable to the area (for example: Woodworking Institute of California).
Jerome - Don’t worry about losing face from walking away. You would look much worse in court.
Since this sounds like a major gamble here, I’m reminded of the words of a Kenny Rogers song entitiled “The Gambler”…“know when to hold them, know when to fold them”…
Interesting question: damaged reputation vs. still having your sanity and money; OR, good reputation vs no money and institutionalized [maybe even divorced]. Besides, when people find out the details of the situation, they will realize how smart your are for your stand.
Ron
PS: I passed this thread along to one of the countrys leading construction attorneys [many in this group know him]. I am hoping he will respond. If he doesnt, it may be because he hurt himself when he fell off his chair from laughing.
The Gambler lyrics, in part, are:
“You got to know when to hold em, know when to fold em,
Know when to walk away and know when to run.”
That’s why you were reminded of the song, Richard…
I would love to see an attorneys response…