Specs are not being issued as part of the Contract Documents, is this the start of an epidemic?

Archive of Older Topics Archive - Specifications Discussions #6
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I issued specs on a 30 story condominium with an integral 8 story parking garage two months ago. The job is now going to bid. However the Developer no longer wants to include the specifications. The Developer claims the specifications will increase the construction cost and has always been against their incorporation. Once the specs were issued, the developer was appalled at the size of the Project Manual.

This architect has been adamant that specs be included because contractually they are part of the contract documents. The Architect also believes that specs overrule the drawings. The way the architect solves construction disputes, is if there is a conflict, the specs are the deciding factor.

The argument is being discussed this week with the attorneys from both sides.

The architect has reached out to me for alternatives, there are not many, they want to consider options to shorten the specs. The architect knows I’ve had success with short form specs, but never for condo work. Short form specs are a risk to begin with, my 20 yr client uses short form specs on most of their projects. But those are rental projects, on a condo the new owners are looking for mistakes by the Developer, they expect perfection and they seldom get it, and so litigation seems to be their means to satisfaction.

I hope to follow up with posts on how this job progresses, will the specs be retained as part of the contract documents or not? I have been thru this before, but usually the Developer and Contractor negotiate a deal where the specs are deleted and the architect is blind sided into no longer having specs as part of the contract documents. This job is different and I am curious what the decision will be.

I have mentioned on other threads that I believe there is now an epidemic affecting contract documents for privately funded construction projects specifically in South Florida. There are 30 highrise projects I know of which are being built without specifications. Many of these projects are designed by world class architects, OMA, Sir Norman Foster, Bjarke Ingels, to name a few. Most of the reasons for not including specs are the same reasons for using specs, construction quality for one, where will it end?

On condo work its usually litigation, which I have not been privy to, even though Developers sight specs as the instigator of litigation, there is no proof of that. I stongly believe that contractors have brainwashed developers into believing that specifications are detrimental to construction.

And the Contractors are winning, my current project is a good example, Developer and Architect are fighting about the completed specs before being issued for bidding. How is that possible? Did the Architect not do his due diligence in selling the value of specifications to the Developer? Or is there a fear developing in the industry that specs should not be included in the Contract Documents. The 30 highrise projects I mentioned previously amount to billions of dollars of construction, some of these are mega highrise projects, I seriously don’t know how the architects sleep at night with these projects under construction w/o specs.

But they are, because more projects are coming, Miami is becoming a Latin NYC, a hub of international commerce and it does not seem to be slowing down. Architects are busy. Specwriters are not. Perhaps my peers have some valid suggestions. Sighting industry standards does not seem to matter. My client is holding on for now that specifications are an important part of the contract documents and can not be deleted. But the bottomline is always about $$$$. If the job does not go to bid, the architect won’t be paid and new litigation will evolve. It could get very ugly.

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BTW. I failed to mention that the developer’s internal team includes a contractor, this will probably be the Construction Manager, yet to be decided. I believe this contractor is feeding the Developer’s fear on the use of specifications. At one time the Developer agreed to pay for the specifications, so at one time the Developer was ok with using specs.

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If the specifications are not included: document, document, document.

Retain a copy of the specifications and use them as a guideline for approval of submittals, shop drawings, and substitutions (if they decide to even bother sending any to the architect). Do not approve anything contrary to the specifications. If something is installed over your objection or without your knowledge, inform the owner in writing.

Anything contrary to the specifications that fails later on, you have your documentation and specifications to back you up.

Inform the owner (again, in writing) that this is the position the design team will take throughout construction. Essentially, the design team is absolving itself from any liability for work that is not in conformance with the construction documents you prepared, whether or not they are part of the construction contract.

(BTW, I’m not a lawyer, but that would be my approach)

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I agree Ron, I’ve recommended that the Architect issue the specs as part of the contract documents per their agreement. However it seems the Developer wants the agreement amended to delete reference to specs, perhaps that is why attorneys are involved. Thanks for your input Ron.

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Without the specifications the construction documents will not address many of the code requirements that the Owner is required to comply with.

The Architect and his consultants could take the position that without the specifications the designers are not able to fulfill their professional obligations both to the client and as required by the state licensing laws. Thus I would argue that the Owner is effectively terminating the agreement.

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An argument to consider:
Specifications describe quality of materials and workmanship, difficult, if not possible, to communicate by drawings. Specs also describe the contractual arrangements for administering the contract. These often do add costs, but the rules of the road are necessary to describe, whether simple or complex. If the contract documents are developed at the outset with the understanding that specifications will accompany the drawings, a subsequent decision to omit the specifications means the contract documents are incomplete. This may be desired to give the developer more control, but in the end will give him or her less control.

It may be better to ask the developer how much and what control he or she wants to maintain, then discuss how to articulate the requirements to accomplish this.

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IMHO, Architects should be seeking indemnity from Owners (especially developers) and Contractors who go against the recommendations of Architects regarding best professional practices. This should not extend to typical value engineering decisions, but only to those decisions which the Architect has very serious reservations.

I have a feeling this would need to be litigated, and it may be subject to abuse–“I am not responsible for the performance of the product if you select from the manufacturer’s standard color range rather than the custom color I chose.” It might, however, help to protect an Architect against some of the problematic things that the Contractor tries to talk an Owner into doing over the objection of the Architect.

One of the problems with this approach is that so many development companies are very ephemeral, like steam from a tea kettle, they are soon gone. Being indemnified by such an entity that you don’t expect to be around in a year does’t help much.

With my clients, I try to get them to write a letter to the Owner that shifts design responsibility to either the Owner or the Contractor. This does not necessarily improve the performance of the building, but it may get the Architect out of litigation sooner.

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The development and phrasing of these indemnifications would be a good discussion topic for the SCIP annual meeting in September. Not only for use in architects’ contracts with owners, but also in specification consultants’ contracts with their clients.

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Years ago, in the beginning of my career, my architect employer assigned me to perform construction draw inspections for several of his mortgage company clients. My job was to monthly inspect the process of the actual work as it related to their percentage of work (usually by trade) that they were claiming was performed. In addition, I was required to make notations pertaining to compliance of materials/systems shown and specified in the Contract Documents.

Lenders base their mortgage commitments for a project based on the the project’s contract Documents (dwgs and specs). It normally is as issue with lenders if they feel they are being defrauded by getting a lesser value project then they are paying for.

Jerome has the lending companies, or even the insuring companies, interests come up as a topic in any of the discussions you are confronting?

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Indemnification clauses generally protect the party with the superior position during contract negotiations. What benefit would an owner get by indemnifying an architect? I don’t see how you sell an owner (particularly one predisposed against specifications in the first place) on the desirability of giving indemnity to the architect… much less to a third party specification consultant working for the architect.

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Ron, surprisingly Banks and Insurance Companies have been quiet about the no specs epidemic, but than again I am just the lowly spec writer and not privy typically to those discussions.

On my current project where the Owner has advised the architect that he now wants to delete the specs, the architect advised today that the Owner was advised by the GC to remove the specs from the contract documents. Surprise, Surprise. Architect is planning on meeting with the Owner and the GC to hear their reasoning. Perhaps in a few days I will be told, though hearing that it is coming from the GC and not the Owner leads me to believe the GC will claim that w/o specs costs will be reduced. Money talks once again.

I’ve seen this played out too many times in So FL, GC offers to reduce the construction cost by tossing the specs out, and along with that goes the quality. I’ve had several projects where this has occurred and all those projects have be built with horrendous results, and eventually litigation from the unhappy homeowners.

These developers don’t learn. This architect might stand up to this developer, but this is a huge project, the first tower of as many as 8 towers, and I doubt the architect will fight too long because he wants to be considered for future work.

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…“all those projects have be built with horrendous results, and eventually litigation from the unhappy homeowners…and I doubt the architect will fight too long because he wants to be considered for future work.”

Hello?? What am I missing here? What did Einstein say about doing the same thing over and over again and expecting different results?

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Dave, I agree.

Jerome, you say “These developers don’t learn.” Well, it seems more like “These architects don’t learn.” If architects refused to do the work, then the developers can’t get the project built, whether or not they have a willing contractor.

I can’t figure out why some architects would do risky work just so they might have the ‘possibility’ of future risky work. These architects must have one hell of a professional liability premium.

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Ron, its nuts what is going on in South Florida, one project after the other, 30, 40, 50, 60, 70, and now an 80 story high rise under construction and not a spec on any of them. At one time I was asked to write specs on the 80 story project, but the billionaire Developer wanted to use short form specs, even less, one page per spec section, make it short and sweet he said. I walked away. No other spec writer took on the job, thank god. The production architect is an old friend, he advised that the opportunity to document such a large project was too good of an opportunity to pass. Oh and yes that is what insurance is for to keep the vultures at bay for another day.

There are some specs on the job, waterproofing specs provided by the waterproofing consultant, its really weird, there are 900 sheets of drawings listed and five spec sections in Div 7, and btw the specs are in MF95 format.

There are a lot of greedy architects in S FL, they won’t walk away from a high rise project, they go into litigation from one job to the next.

The 80 story is a bit different the Design Architect and Architect of Record is the developer, a very shrewd, powerful, filthy rich developer. I am worried for my friend, but he claims the Developer has a blanket liability coverage for all professionals on the project under his control.

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Ron, “If architects refused to do the work, then the developers can’t get the project built, whether or not they have a willing contractor.”

Architects in SFL refusing to do the work, seriously does that happen anywhere?

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*Oh and yes that is what insurance is for to keep the vultures at bay for another day. *

LOL, its the opposite. Only the insured get named in the claims and lawsuits. They are the only ones with financial resources worthy of going after. The uninsured are usually dismissed immediately.

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I’m pretty sure everyone gets named, whether insured or not.
I don’t think proof of insurance is normally requested prior to someone’s being named in a lawsuit.
After suit is filed, people figure out who has insurance or assets.
Most lawyers don’t hesitate to name e.v.e.r.y.o.n.e. in a suit. It might be malpractice if they didn’t.

Some uninsured people have assets worth suing for. Some judgments allow for garnishment of wages. Insure yourself if you have assets you don’t want to lose.

I am not a lawyer…

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I’m not a lawyer either, but I do have a (un)fair amount of litigation experience, including in Florida, which is a world unto itself.

I did a lot of condo work, and public schools. Litigation is simply the final phase of each project.

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“Insure yourself if you have assets you don’t want to lose.”

That is why years ago I set up trusts where my assets reside. My best defensive position is no defense at all. Let them try to find and get my assets.

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Seems like AIA and CSI and maybe the AGC need to address this issue. The individual firm can do little, because there’s always another that will take on the work.

Does this mean we can stop worrying where the next generation of specifiers is going to come from?